Could an ICC arrest warrant for Netanyahu come back to haunt US officials?

Biden has dismissed as 'outrageous' the move by the ICC's prosecutor to arrest the Israeli Prime Minister and his defence chief

US President Joe Biden is welcomed by Israeli Prime Minister Benjamin Netanyahu during a visit to Israel in mid-October last year. Reuters

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Washington's continued backing of Israel after the lead prosecutor of the International Criminal Court's decision to seek arrest warrants for Israeli officials could ultimately create legal vulnerabilities for US leaders, experts say.

The US swiftly condemned the ICC on Monday after top prosecutor Karim Khan said he would seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant.

Mr Khan is also seeking warrants for three top Hamas officials.

While the US does not recognise the ICC's jurisdiction, the case could pave the way for American leaders and officials to be held accountable in US courts of law, said Daniel Levy, president of the US-Middle East Project.

“I don't think this will be upheld ultimately, but it does create new vulnerabilities individually and collectively, for the people who have lent a hand,” Mr Levy told The National.

"Let's be very clear, these crimes that Israel's leaders are being accused of could not have continued without the constant flow of American munitions and weapons."

He said the administration of President Joe Biden, who has called Mr Khan's announcement “outrageous”, appears to be saying they are willing to bring down the “fragile” global system of international law to guarantee that Israel can never be held accountable.

“The outrage … is the autopilot response when Israel is criticised or held accountable,” Mr Levy said.

“The whole essence of the US-Israel relationship is Israeli impunity, guaranteed by America, and the whole essence of a rules-based, law-governed world is that no one should be free from accountability.”

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Francis Boyle, a professor of international law at the University of Illinois Urbana-Champaign, told The National that US leaders should be careful about how they respond to the case.

In January, a group of Palestinian Americans, Gaza residents and representatives of human rights organisations tried to sue the Biden administration, accusing it of complicity in failing to prevent an unfolding genocide in Gaza.

The judge quickly tossed out the lawsuit, ruling that federal courts lacked the authority to rule on some decisions by Congress and the President.

But the case highlights the sort of legal challenge US politicians and the Biden administration could face.

“If they're not careful, Biden [and other top officials] could be in a position of aiding and abetting Israeli war criminals,” Prof Boyle argued.

Members of Congress have also condemned the ICC, with some threatening sanctions.

On Tuesday, Speaker of the House of Representatives Mike Johnson called Mr Khan's decision “baseless and illegitimate”, saying he was working on legislation to address the ICC “as quickly as possible”.

Secretary of State Antony Blinken said he would work with Congress to craft an “appropriate response” to the ICC.

The US brought sanctions against ICC officials in 2019 under former president Donald Trump after the court opened an investigation into American activity in Afghanistan. Mr Biden reversed those sanctions.

Two hundred days of Israel Gaza war – in pictures

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Prof Boyle expressed doubt that Mr Biden would support new sanctions as it would make him “appear to be a total hypocrite”.

Talk of sanctions is an attempt by Washington to “bully and intimidate” the court, Mr Levy said – “and more often than not, it's effective”.

Prof Boyle represented the group Mothers of Srebrenica and Podrinja before the International Criminal Tribunal for the Former Yugoslavia, a predecessor to the ICC.

He was involved in convincing it to indict Yugoslav president Slobodan Milosevic on war crimes, genocide and crimes against humanity in Bosnia.

As to how quick and effective Mr Khan's efforts might be, Prof Boyle said: “It seems to be we have an army for international human rights lawyers out there and I'm confident one of this worldwide college of international human rights lawyers will bring to the bar of justice Netanyahu [and] Gallant.”

He pointed to the two cases before the International Court of Justice that involve the war in Gaza – one brought by South Africa accusing Israel of genocide and another brought by Nicaragua, which accuses Germany of enabling genocide in the enclave.

“There's a mountain of evidence from reputable sources that would substantiate the claims by Karim Khan for war crimes and crimes against humanity and, indeed, also for genocide,” Prof Boyle said.

He said the ICC case is likely to cause countries around the world to re-evaluate their attitudes towards Israel.

Now that Mr Khan has submitted his applications for arrest warrants, a panel of three judges will consider whether or not to accept them.

They take on average two months to consider the evidence and determine if the proceedings can move forward.

This is a “very important step towards eroding Israeli impunity, holding Israel accountable and therefore, eventually, perhaps ending the crimes that have been committed against Palestinians”, Mr Levy said.

“But it's just one step.”