Biden and Congress are Destroying International Law for Israel – Mitchell Plitnick 5/23/24


The current American threats to sanction the ICC could spell the death of International Law. Whatever little hope people had for a just international system will disappear.

“Let me be clear, we reject the ICC’s application for arrest warrants against Israeli leaders,” U.S. President Joe Biden told his audience at a Jewish American Heritage Month event at the White House on Monday.

Biden criticized the request for arrest warrants as creating a “false equivalence” between Israel and Hamas. By making that statement, Biden took a clear stance against the rule of law, under which any party, regardless of any other status, must be dealt with the same way.

He also clarified again, if anyone was still unclear on the point, that the United States rejects accountability for itself and its allies, but holds rigorous standards in that regard for its enemies. Just over a year ago, Biden said that an ICC arrest warrant against Russian President Vladimir Putin was “justified” because he had “clearly committed war crimes.”

The hypocrisy is par for the American course. But Biden is now faced with a dilemma. He and other senior officials in his administration have indicated that they will use more than words in response to the ICC Prosecutor’s request. Some in Congress are essentially calling for all-out war on the Court. But Biden is likely to be reluctant to go that far.

Republicans target the ICC

It had been clear for the past several weeks that the International Criminal Court (ICC) was preparing a case against Israeli leaders, and on Monday, the Chief Prosecutor of the Court, Karim Khan, requested arrest warrants for three Hamas leaders and two Israelis. The Israelis were Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.

Predictably, both Israeli and American leadership lapsed into hysterics. As usual, Netanyahu immediately labeled the request for the warrants “the new antisemitism.” He also claimed that the Prosecutor “should be worried about his status,” a thinly veiled threat of violence, and that Khan was “turning the ICC into a pariah institution” and was “pouring gasoline on the fires of antisemitism spreading around the world.”

That kind of reaction reflects a profound concern about the charges potentially being brought against him — and it should not be overlooked that his statement did not include a denial of those charges. Netanyahu ran through the entire tired propaganda playbook, yet in doing so, he only highlighted the legitimacy of Khan’s request. But this was far from the beginning of the war on the Court.

Last week, before the warrants had been requested, a group of twelve Republican senators threatened Khan directly in a letter against bringing charges against Netanyahu. The letter was signed by some of the most prominent Republicans in the Senate, including Minority Leader Mitch McConnell, Marco Rubio, Tom Cotton, Ted Cruz, and Tim Scott.

The letter threatened sanctions against the ICC and Khan himself, saying “Target Israel and we will target you.” This is language that should be more characteristic of the Mafia than of government officials, though increasingly, it is hard to tell the difference. It closed by stating flatly, “You’ve been warned.”

Khan also told CNN’s Christiane Amanpour that a “senior elected official” had told him ‘This court (the ICC) is built for Africa and for thugs like Putin.” It seems likely that such a blunt and racist bit of bullying came from an American leader.

One might believe that this is all just Republicans putting on their usual show, but that isn’t the case this time. In his testimony at a Senate Foreign Relations Committee hearing, Biden’s Secretary of State Antony Blinken told Republican Senator Lindsey Graham that he welcomed the opportunity to work with him on what Graham called a “bipartisan effort to sanction the ICC, not only for the outrage against Israel but to protect in the future our own interests.”

In fairness, Blinken left the administration a lot of wiggle room in his comments. He later said he wanted to work with Congress on “an appropriate response” to the ICC’s “wrong-headed decision.” He also explicitly defended the decision in the early days of the Biden administration to cancel sanctions that had been enacted by Donald Trump against the ICC Chief Prosecutor at the time, Fatou Bensouda, who initiated an investigation of Israel and Palestine for actions since 2014, as well as of the United States for possible war crimes in Afghanistan.

Blinken is leaving that wiggle room because he knows that the Republican attempt to bully the ICC, like Trump’s in 2020, is itself a crime — as is always the case when an attempt is made to intimidate a legal official in any jurisdiction. The mobster-style bullying is too blatant for Biden, and risks alienating many of the U.S.’s closest allies. But it is clear that Biden and Blinken fully intend to find a more creative way to press the ICC to deny Khan’s request for arrest warrants or, failing that, to withdraw them.

Divergent American views on the ICC

For Republicans, the thuggery is suitable because they don’t want to work with, much less within, international institutions of any kind in pursuit of American objectives. That holds even if the partnership is advantageous for the United States. Democrats, and certainly Biden, see it differently.

Biden, whose foreign policy thinking was developed at the height of the Cold War and never evolved as times changed, has a stronger desire to maintain international institutions like the ICC. In the more traditional worldview, before the Republican party became what it is today, there was a bipartisan consensus that supported the existence and functioning of the ICC, while keeping the U.S. and its allies outside the Court’s purview. This is what that anonymous leader meant by the ICC being only for Africa.

The idea is to use the Court and similar institutions for American purposes while denying its authority over the U.S. and its allies. Thus, the Biden administration and most in the Washington foreign policy bubble loved the Court when it issued its arrest warrant for Vladimir Putin two years ago. …

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