Washington, D.C., is a town divided, with major pieces of legislation stalled, collegiality between Republicans and Democrats virtually nonexistent, and congressional hearings descending into juvenile name-calling that would be sad in the schoolyard, let alone in the halls of Congress. But if there is one thing that has brought everybody together this week, it's Karim Khan, the chief prosecutor for the International Criminal Court (ICC), who filed war crimes charges against three senior Hamas members and two senior Israeli officials, including Israeli Prime Minister Benjamin Netanyahu himself.
The reactions on and off Capitol Hill were swift. House Speaker Mike Johnson announced that the House was prepared to vote on sanctions targeting the ICC for in effect suggesting Netanyahu and Israeli Defense Minister Yoav Gallant were possible war criminals who needed to be at the Hague. President Joe Biden, in a terse statement, bluntly called the ICC prosecutor's decision "outrageous." Testifying in front of a Senate Appropriations subcommittee this week, Secretary of State Antony Blinken even stated that the administration would "welcome" working with Congress on sanctions against the ICC.
Whether or not Khan's decision to charge Netanyahu is merited (international jurists and experts on human rights law will come to their own respective conclusions on the merits), there's no question that it has once again exposed the decades-long fault line between the ICC and the United States. The relationship between the two has been rocky ever since the ICC was created by the 1998 Rome Statute, which Washington had a significant role in drafting. It didn't take long before the U.S. pointed out the treaty's deficiencies. After signing, former President Bill Clinton wrote that "we are concerned that when the Court comes into existence, it will not only exercise authority over personnel of states that have ratified the Treaty, but also claim jurisdiction over personnel of states that have not."
Clinton's successor, George W. Bush, despised the ICC even more than Clinton did. In 2002, Bush in essence removed Washington's signature from the Rome Statute, declaring that from now on, no decision by the ICC would be binding on the United States. While the Bush administration had an aversion to multilateral organizations in general, its opposition to the ICC was based on a fear that the international prosecutor's working for the court would start prosecuting U.S. troops fighting overseas. Those concerns turned out to be prescient; in 2017, the ICC chief prosecutor requested the Court authorize an investigation against U.S. military personnel in Afghanistan, which the ICC green-lit in 2020 (the U.S. was dropped a year later as a main subject of the inquiry).
Former President Donald Trump took an even harder line on the ICC than Bush did. The Trump administration reiterated early on that the U.S. would not cooperate with the court in any capacity. In 2018, during his address to the U.N. General Assembly, Trump said that, "As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority." The relationship got worse from that point on. In 2019, then-Secretary of State Mike Pompeo let it be known that the U.S. was revoking or denying the visas of any ICC prosecutor investigating U.S. troops in Afghanistan. In June 2020, Trump signed an executive order permitting the freezing of assets and visa bans on any ICC official who was involved in any effort to investigate U.S. personnel or personnel of a U.S. ally (Biden would lift sanctions on ICC officials during the first months of his presidency).
Yet at times, the U.S. has cooperated with the ICC when it concluded that doing so was in its own interest. In 2005, the Bush administration supported a U.N. Security Council Resolution that allowed the ICC to launch an investigation against Sudanese government officials for war crimes and crimes against humanity in Darfur (Sudanese dictator Omar al-Bashir was indicted in 2009 and 2010). In 2011, the U.S. did the same thing, this time supporting the referral of Libyan officials to the ICC. And in 2023, the Biden administration ordered the U.S. to hand over evidence to the ICC to buttress its case on Russian war crimes in Ukraine; Russian President Vladimir Putin, of course, is now wanted for the crime of unlawful deportation of a population from occupied areas of Ukraine to Russia.
This murky, topsy-turvy history, combined with the ICC's war crimes inquiry against Israeli conduct in Gaza, puts the Biden administration in a very uncomfortable position. On the one hand, Biden's senior advisers are threatening the court with legislatively-induced sanctions. Yet on the other, those same advisers are on record supporting the court's work at its pertains to unearthing Russian atrocities in Ukraine. The same day Blinken was in front of Congress flirting about possible sanctions, his colleague, Defense Secretary Lloyd Austin, was at the Pentagon telling reporters that the U.S. will "continue to provide support to the ICC" on the Russia investigation.
To the vast majority of the world, this stance looks like blatant hypocrisy. For those in Africa, Latin America, the Middle East, and swaths of Asia who are already disposed toward viewing U.S. foreign policy as shamelessly self-serving, Washington's position on the ICC will only confirm their suspicions. The U.S. is thus far unapologetic about its strategy. But as time goes on, U.S. officials will find it more difficult to make their case and not get laughed out of the room.
Daniel R. DePetris is a fellow at Defense Priorities and a syndicated foreign affairs columnist at the Chicago Tribune.
The views expressed in this article are the writer's own.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
