Netanyahu War Crimes Investigation Puts Biden in Tough Spot

An International Criminal Court (ICC) investigation into Israeli Prime Minister Benjamin Netanyahu for possible war crimes committed throughout the ongoing war in the Gaza Strip would put U.S. President Joe Biden in a difficult position as the White House seeks to protect its ally from prosecution.

While neither the U.S. nor Israel are parties to the ICC's founding Rome Statute, concerns are mounting in both countries over the possible verdict of The Hague-based court's ongoing probe into suspected violations carried out within Palestinian territory, which is subject to ICC jurisdiction. The issue is potentially problematic for the Biden administration, which backed the ICC's decision last year to serve an arrest warrant to Russian President Vladimir Putin over the war in Ukraine despite neither Washington nor Moscow being formally affiliated with the international body.

"On Russia, there was a total consensus against Russian aggression and when you read the speech by the Americans at the Security Council, they were furious with [Russia] blocking the consensus to protect the law," Luis Moreno-Ocampo, who served as the first prosecutor to the ICC, told Newsweek.

"Now it's the U.S. which is blocking the consensus to apply the law," he added, "and that is a problem."

Moreno-Ocampo, who successfully prosecuted three heads of state during his nine-year tenure, said that he had evaluated opening cases on Israel but was twice asked by U.S. officials to halt the effort. And while he noted that the ICC should also move forward with investigations into reports of Hamas committing atrocities during the October 7 attack that sparked the conflict, he argued that any efforts to pressure international courts served as an impediment to global justice.

"We should not accept that the government says you cannot prosecute this individual because he is my friend. That is not what the world needs. No, I think it's a problem," Moreno-Ocampo said. "I think it is a serious problem because the U.S. policy is to protect its friends."

Complex Relationship

Washington's relationship with the ICC is complicated and has undergone several phases.

The U.S. was one of only seven countries—along with China, Iraq, Israel, Libya, Qatar and Yemen—to vote against the United Nations Security Council resolution to establish an international criminal court in 1998. Then-President Bill Clinton signed on to the Rome Statute that would serve as the basis for the ICC mandate in 2000, but the signature was never ratified and, his successor, former President George W. Bush, informed the U.N. that the U.S. had no intentions of joining the court.

Ties improved later in the Bush administration and throughout the tenure of former President Barack Obama, who sought active engagement with the ICC, even as he officially opposed the Palestinian National Authority's decision to join the Rome Statute given that the U.S. does not recognize Palestinian statehood in its current form.

"President Obama officially said the U.S. strategy is to support the ICC cases that the U.S. likes," Moreno-Ocampo said. "So, the U.S. is not believing in impartiality. The U.S. believes in justice against my enemies. That's it."

"The U.S. Congress applauded when the Security Council sent the Libya case to the ICC or in Darfur, in Uganda, so it depends on the case," he added. "Of course, when you do cases against enemies, the U.S. will be happy. But that's why the prosecutor is independent."

The White House's wrath was on full display under the former President Donald Trump, whose administration pursued punitive measures against ICC personnel, including visa withdrawals and sanctions, after a case was opened over potential U.S. war crimes in Afghanistan. The case was eventually dropped in 2021 and sanctions were lifted by President Joe Biden.

Though the Biden administration remained openly opposed to any efforts to prosecute Israel, the current U.S. leader ultimately supported the ICC investigation into Putin after attempting to set up a separate domestic court to oversee the proceedings in Ukraine. The Biden administration later made the historic decision last year to collaborate actively in providing evidence to the ICC on the issue.

Now, however, the U.S. policy toward the ICC, which currently counts 124 Rome Statute parties, has once again been put to the test as Netanyahu faces potential prosecution over the war in Gaza.

Warnings to the Court

Frictions have emerged between the U.S. and Israel over the White House's repeated calls for Netanyahu to do more to avoid civilian casualties and expand humanitarian assistance, but U.S. officials have asserted that they were against Israel being put before the ICC.

"The crux of this for the United States is that we do not believe that the ICC has jurisdiction on this," State Department deputy spokesperson Vedant Patel told reporters last week. "That being said, we work closely with the ICC on a number of key areas. We think that they do important work—important work as it relates to Ukraine, Darfur, Sudan. But again, in this particular instance, I'm sorry, they just do not have jurisdiction."

State Department spokesperson Matthew Miller reiterated the point on Monday, saying, "We have made clear that we do not believe the ICC has jurisdiction in this case and oppose their investigation."

Conservative members of Congress have weighed in as well. A letter from a group of Republican lawmakers, led by Arkansas Senator Tom Cotton, sent to ICC Chief Prosecutor Karim Khan last month asserted that "such actions are illegitimate and lack legal basis, and if carried out will result in severe sanctions against you and your institution." It warned, "Target Israel and we will target you."

White House Press Secretary Karine Jean-Pierre also expressed U.S. opposition to the ICC investigation into Israel during a press briefing last week. At the same time, she said the Biden administration has been "very clear about opposing any type of a threats or attempts to intimidate" public officials, "including ICC officials."

One senior Biden administration official told Newsweek that the White House did not plan to target ICC officials in the same manner that the Trump administration had.

In his latest comments on the ICC, Netanyahu argued in a video address delivered Monday on Holocaust Remembrance Day that it would be an "indelible stain" for a court "founded as a consequence of the Holocaust" to pursue charges against Israeli leadership amid the ongoing conflict with Hamas. In earlier remarks issued last week, he argued that such an investigation would amount to a "historic scandal" and an "unprecedented anti-Semitic hate crime."

"Branding Israel's leaders and soldiers as war criminals will pour jet fuel on the fires of anti-Semitism, those fires that are already raging on America's campuses and in capitals all around the world," Netanyahu said at the time. "It will also be the first time that a democratic country fighting for its life according to the rules of war is itself accused of war crimes."

"The Israeli army, the IDF, is one of the most moral militaries in the world, it takes endless measures to prevent civilian casualties, measures no other army takes," the Israeli leader added. "It does so while fighting a terrorist enemy which uses its own civilians as human shields."

Reached for comment on the ICC investigation and potential U.S. actions to obstruct it, a spokesperson for Netanyahu's office told Newsweek: "We expect all necessary measures applicable to the law be taken to prevent this absurdity."

A spokesperson for the ICC told Newsweek that "the ICC Office of the Prosecutor has a current and ongoing investigation in relation to the Situation in the State of Palestine" and noted that Khan "has addressed the situation in various public remarks and also in official statements at the ICC Assembly of States Parties."

At the same time, the spokesperson said that Khan "has also underlined that the Office does not give a running commentary in relation to ongoing investigations, nor does the Office respond to speculation in media reports."

While the ICC has not formally responded to any comments regarding the reported investigation into Israel, Khan's office issued a statement on Saturday emphasizing the duty of the court "to act independently and impartially" and warning that such values "are undermined, however, when individuals threaten to retaliate against the Court or against Court personnel should the Office, in fulfilment of its mandate, make decisions about investigations or cases falling within its jurisdiction."

"The Office insists that all attempts to impede, intimidate or improperly influence its officials cease immediately," the statement said.

Overcoming Accusations of Bias

It's not the first time the ICC has been accused of undue bias. The vast majority of individuals indicted by the court have been from Africa and critics have long argued that the ICC remained too focused on one continent while not putting sufficient resources to prosecuting alleged war crimes taking place elsewhere in the world.

Noting both Netanyahu's line of argument and those put forth by others subject to ICC investigations, Chile Eboe-Osuji, a former president of the ICC, told Newsweek that "it has become routine for persons subjected to scrutiny at the ICC to throw such straws at the ICC in desperation."

He recalled arguments by past targets from African countries such as Kenyan officials and former Sudanese President Omar al-Bashir, all of whom Eboe-Osuji said engaged in "a sustained campaign calling the Court 'racist' and a 'neo-colonialist' tool that Western powers were using to harass African leaders."

"As an African, I disagreed with such characterizations, and I defended the Court. The Court proceeded with its processes undeterred by those allegations," Eboe-Osuji said. "We see the same thing happening here. I disagree with the 'antisemite' allegation."

"Antisemitism is an abhorrent conduct that the whole world must stand on guard against. It has done real harm to our shared humanity," he added. "But we want that allegation to have meaning. Using it reflexively at every turn to deflect criticism of the conduct of the individuals who exercise political power in Israel comes with an unfortunate danger of wearing thin the treads to that serious misanthropy that needs to be confronted whenever there is a real incident of it."

As to concerns that the ICC may be unfairly targeting Israel over Hamas, Eboe-Osuji said he expected that the Palestinian movement would also be subject to investigation.

"The trouble of course is that the Israeli government has vowed to kill all the Hamas militants implicated in that attack," the former ICC president said. "The thing with that is this: it may mean that the IDF might leave Karim Khan no Hamas operatives to prosecute at the ICC."

"Even so," he added, "the present allegation of antisemitism against the ICC cannot be taken seriously by anyone except those who chose to make it in the vain hope that it might stop any ICC process in its tracks."

What Case Could Look Like

While it remains uncertain exactly how the ICC may pursue its investigations into Israel, Moreno-Ocampo offered some potential hints in Khan's language that point to four areas of investigation.

The first two pertain directly to the IDF's actions in Gaza. They include allegations of putting the densely populated Palestinian territory under siege, which would amount to a war crime if Israel was found to be deliberately denying crucial goods such as food and medicine to residents, and intentionally bombing protected sites, such as mosques and hospitals, which the IDF has alleged are used by Hamas to store weapons and conduct attacks.

The third area involves Hamas' role in planning and conducting the October 7 attacks, during which Israeli officials have argued that the group, alongside other Palestinian factions, specifically targeted civilians to murder, sexually assault and kidnap. Moreno-Ocampo noted that the ICC's capacity to investigate such acts committed on Israeli soil is limited due to Israel's lack of cooperation with the court, but the ICC could go after Hamas' financial networks abroad.

Finally, a fourth area of potential investigation would be the Israeli government's policy toward settlers that have been accused of attacking Palestinians in the West Bank throughout the course of the conflict in Gaza.

"These are the four investigations probably open," Moreno-Ocampo said. "Where they are depends on the evidence connected."

As for how the case proceeds, Moreno-Ocampo said the next step would be to provide evidence to the pre-trial chamber whose judges would decide whether there was sufficient material to bring about a case. This could either directly result in a warrant being issued, or, as Moreno-Ocampo noted, the prosecutor could invite the concerned parties—Israeli and Hamas leaders—to appear at The Hague to discuss the case.

'Nobody Is Above the Law'

Should a decision be made by the ICC to issue an arrest warrant, Eboe-Osuji emphasized that such a move "would have come only at the end of what is already a very long rope."

"It will be recalled that right at the beginning of the war, Karim Khan had put both sides on notice that he would be investigating how the war is being fought," Eboe-Osuji said. "Right from the beginning, every high official in the UN system, from the Secretary-General down, was decrying the indiscriminate nature of the bombings that were killing civilians in record numbers in modern history, accompanied by dangerous rhetoric openly indicating intent to starve the population."

He also noted statements of concern issued by the leaders of Western nations, including Canada, France and Ireland, and even Biden.

"Even he has repeatedly been on record chastising the Israeli military operation in Gaza—describing the operation as entailing 'indiscriminate' killing of Palestinians," Eboe-Osuji said. "And Prime Minister Netanyahu has been keen to strike a public pose that pushes away Biden's concerns, demanding only that Biden give him weapons to use as he sees fit."

"It is truly difficult to imagine anyone else who for so long would have escaped the ICC spotlight in light of evidence of similar conduct as we've seen in Gaza," he added. "Not even U.S. operatives were able to escape it for far less serious allegations in Afghanistan."

Now, with Netanyahu declaring that a planned offensive into Rafah would move forward despite the Biden administration's protests, the former ICC president argued that the international court's current prosecutor may have little choice but to take the case public and that the U.S. leader's options to respond may be limited as well.

"I would expect that an onslaught on Rafah which results in further eyesore of more bloodshed of civilian life and destruction of civilian infrastructure—a prospect which Biden has drawn a 'red line' against—will immediately force Karim Khan's hand," Eboe-Osuji said.

"In light of the foregoing, and given that Biden had communicated his agreement with the ICC arrest warrant issued against President Putin," he added, "it would be difficult to see any justifiable legal basis on which Biden would disagree with subjecting Israeli leadership to the assessment of their conduct in Gaza against the yardstick of international law assessed by impartial judges."

Eboe-Osuji also cited the words of another Western leader, German Chancellor Olaf Scholz, who, after the ICC arrest warrant for Putin was issued last year, declared that "nobody is above the law."

"The Chancellor is correct," Eboe-Osuji said. "The question in every case must be whether these arrest warrants are based on principles of law against which the conduct of people can be measured for correctness. If, yes, then then no one should be above having his or her conduct measured against those principles of law. It is as simple as that."