Geopolitical Interests and International Law: Examining the International Criminal Court’s Recent Actions

The complex relationship between the United States and the International Criminal Court (ICC) is marked by a series of contradictions, reflecting tensions between geopolitical interests and the rhetoric of the rule of law. On the one hand, as a leading liberal democracy, the United States seeks to condemn conduct that violates liberal values. On the other hand, its quasi support for the ICC – the United States signed but never ratified the Rome Statute – is mediated by political, strategic, and power concerns, especially when warrants concern allies. As a major global power, the United States’ inconsistency in the degree of support it affords the ICC prosecutions casts a shadow over ICC’s ability to hold those who commit heinous crimes accountable.

The International Criminal Court was established by the Rome Statute in 2002. The statute established four international crimes that fall within the jurisdiction of the ICC: genocide, crimes against humanity, war crimes, and crimes of aggression. The concept of war crimes was developed when international humanitarian law was codified. The Hague Conventions of 1899 and 1907 (“Hague Law)” were a series of treaties and declarations that became among the first statements of the laws of war. The Geneva Conventions, comprising the 1864 Geneva Convention, the four 1949 Geneva Conventions, and the accompanying 1977 Additional Protocols (“Geneva Law”), subsequently codified norms of war, including identifying conduct that would amount to war crimes. In addition to the Hague Law and the Geneva Law, war crimes can be found in customary international law, international humanitarian law treaties, and in treaties of ad-hoc criminal tribunals (e.g., International Criminal Tribunal for the former Yugoslavia). Twenty three cases, including warrant issuances, concerning war crimes have either been prosecuted or are currently pending at the ICC.

Support for the ICC varies by country. There are 124 countries that are party to the Rome Statute, as well as several other countries that signed the statute but did not ratify it. The European Union is a strong supporter of the ICC, and in 2011 adopted a resolution for a binding policy in support of the ICC in order to “continue the promotion of the universality and preservation of the integrity of the Rome Statute.”

The United States played a significant role in the establishment of the ICC. Originally, the Clinton administration signed the Rome Statute, but recommended that it not be ratified in the Senate due to concerns that the ICC prosecutor would have “unchecked power” and lead to politicized prosecutions. The Bush administration subsequently sent a note to the Secretary-General of the United Nations announcing that “the United States does not intend to become a party to the treaty,” and that, “accordingly, the United States has no legal obligations arising from its signature on December 31, 2000.” The U.S. passed an act to prohibit U.S. agencies from assisting the ICC that stated that the U.S. “will not recognize the jurisdiction of the ICC over US nationals.”

Today, the Biden administration has demonstrated a more cooperative attitude towards the ICC, but only in some instances. Last year, the U.S. provided evidence to support the ICC’s investigation into Russian war crimes in Ukraine, and has publicly “support(ed) the investigation conducted by the ICC as well as other accountability investigations,” when referring to Russia.

However, when the ICC Prosecutor Karim A.A. Khan submitted applications for arrest warrants regarding the situation in the State of Palestine, the Biden administration announced that it “fundamentally rejects” such actions. The U.S. argued that the ICC has no jurisdiction over the matter, since the U.S. does not recognize Palestine as a state, and Israel is not a signatory to the Rome Statute. However, Palestine is a state party to the ICC, and the ICC Pre-Trial chamber ruled in 2021 that it had jurisdiction over Gaza and the West Bank.[4]

In denouncing the prosecutor’s warrant application, President Biden argued that it falsely equated Israel and Hamas. Former UK Prime Minister Rishi Sunak, Germany’s Foreign Office, Polish Prime Minister Donald Tusk, Czech Prime Minister Petr Fiala, and others denounced the request as well.

Israel Prime Minister Benjamin Netanyahu, who is the subject of the arrest warrant application, condemned the request, saying it compared a democratic Israel with mass murderers (Hamas). He also called it an “absurd and false order” that is “pouring gasoline on the fires of antisemitism that are raging across the war.”

Khan’s charges against Prime Minister Netanyahu and Israeli Minister of Defense Gallant include allegations of starvation of civilians as a method of warfare, and intentionally directing attacks against a civilian population. Charges against Hamas leaders included extermination, murder, taking hostages, rape and sexual assault, torture, and abuse of prisoners in harm to their personal dignity.

The allegations against Israel are supported by well-documented evidence. For example, Gaza went on a new UN famine alert on June 27 as “security experts warned that more than one in five households go entire days without eating.” According to the World Food Programme, child malnutrition in Gaza is higher than anywhere in the world. In March, two newborn baby girls died due to malnutrition and dehydration, and several humanitarian experts have warned of the catastrophic levels of hunger. Even the United States has consistently publicly said that Israel has not done enough to ensure humanitarian aid is entering Gaza, and President Biden has called the humanitarian situation “unacceptable.” Furthermore, the Human Rights Watch (HRW) has accused Israel of “deliberately blocking the delivery of water, food, and fuel, while willfully impeding humanitarian assistance.” HRW interviewed 11 Palestinians in Gaza who described having no food, water, or electricity. After October 7th, “Defense Minister Yoav Gallant of Israel said that ‘no electricity, no food, no water, no fuel’ would be allowed into Gaza, the crowded and impoverished coastal territory that is already under a 16-year blockade by Israel and Egypt.” Starvation is illegal under Article. 8(2)(b)(xxv) of the Rome Statute of the International Criminal Court (ICC).

Haaretz reported that “[T]he Israeli army says 9,000 terrorists have been killed since the Gaza war began. Defense officials and soldiers, however, tell Haaretz that these are often civilians whose only crime was to cross an invisible line drawn by the IDF.” This report is consistent with a quote from an IDF soldier in a +972 report who said “it was not clear from the reports whether soldiers had shot militants or unarmed civilians and many times, it sounded like someone was caught up in a situation, and we opened fire.” Even the United States said that it is reasonable to assume that there were instances in which Israel did not act in accordance with International Humanitarian Law, though did not actually accuse Israel of doing so. A U.S. State Department official who resigned said that a State Department report sent to Congress “falsely stated that Israel was not blocking humanitarian aid to Gaza.” The report noted that Israel “did not fully cooperate” with the U.S. and other efforts to get humanitarian aid into Gaza in the period after October 7th.

Khan’s accusations against Israeli war crimes are thus not meritless. Khan’s office also submitted evidence that included interviews with survivors, eyewitnesses, authenticated video, photo and audio material, and more. The request for warrants was also accompanied by an “impartial” group of international law experts, including “Sir Adrian Fulford PC, former Lord Justice of Appeal and former International Criminal Court Judge; Baroness Helena Kennedy KC, President of the International Bar Association’s Human Rights Institute; Elizabeth Wilmshurst CMG KC, former Deputy Legal Adviser at the UK Foreign and Commonwealth Office; Danny Friedman KC; and two of my Special Advisers – Amal Clooney and His Excellency Judge Theodor Meron CMG.”

Khan also rightly states that “Israel, like all States, has a right to take action to defend its population. That right, however, does not absolve Israel or any State of its obligation to comply with international humanitarian law.” Furthermore, those who argue the ICC does not have jurisdiction over this case also say that the ICC should intervene “only when States are unwilling or unable to genuinely carry out the investigation or prosecution of these crimes.”[14] However, “according to human rights experts in Israel, the country’s military has shown a lack of transparency and will to investigate its own soldiers,” and there has not been any prosecution of high level Israeli officials for alleged war crimes, nor has there been a meaningful change in Israeli operations. In the past, the Israeli Supreme Court dismissed a petition to remove settlements in the West Bank, which are largely considered (even by the United States) to be in violation of the International Humanitarian Law.

The United States position regarding potential prosecution of Israeli officials stands in contrast to the support the U.S. showed for the ICC investigation of Russian war crimes in Ukraine. Historically, the U.S. has selectively supported ICC actions when they aligned with its interests. Ukraine is not an ICC member, but the United States has supported ICC’s issuance of arrest warrants against Vladimir Putin and Maria Lvova-Belova. Their support for past ICC investigations goes beyond Russia. In 2011, the U.S. advocated and voted in favor to refer the situation in Libya to the ICC for investigation. In 2013, they helped facilitate the transfer of Bosco Ntaganda to the ICC, and in 2015 helped facilitate Dominic Ongwen’s transfer to the ICC. These instances reveal a pragmatic approach, where the U.S. endorses ICC interventions that coincide with its foreign policy objectives.

The United States’ disapproval of the request for arrest warrants against Israel goes beyond just verbal condemnation. Prior to Khan’s request for warrants, 12 U.S. senators threatened Khan in a written letter. “The United States will not tolerate politicized attacks by the ICC on our allies. Target Israel and we will target you. If you move forward with the measures indicated in the report, we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned.” Congress has also passed a bill to impose sanctions on the ICC. This threat against Khan highlights that United States interest lies in holding power with its allies, rather than upholding international law.

The United States’ position on the enforcement of international law is important as a leader of democracy and the rule of law. Their position on both warrants for Israeli and Russian officials reflect their geopolitical interests in the respective regions. The arguments against ICC jurisdiction in Palestine are not supported in law, and the threats made by United States officials towards Khan emphasize the attempt to protect their allies from being held accountable for their actions, using the fear factor. If major powers like the United States continue to undermine the legitimacy of the ICC, the court risks further criticism and puts the validity of the ICC at risk, which has already received substantial criticism for focusing overwhelming attention on African actors. In order to ensure that all people are held accountable for their severe criminal actions in times of conflict, the United States and other major powers need to adopt their policy and stance regarding the ICC.

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Geopolitical Interests and International Law: Examining the International Criminal Court’s Recent Actions

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