Sanctions against the International Criminal Court (ICC) are not sufficient for the performance of its task

As a dual American-Israeli citizen whose family was decimated in the Holocaust, I care deeply about the fate of the Jewish people and the safety of all Israelis. My family lost 80 relatives at Auschwitz to the Nazis. This story was brought to mind last year during a family visit to the Jewish Museum in Thessaloniki, Greece. There, my cousin, the museum's founder, explained to me that the Auschwitz prison uniform worn by “Prisoner 118745” in a glass case belonged to the only Greek member of our family to survive Auschwitz – her father. Like other Jews whose family histories are indelibly marked by anti-Semitism and genocide, I was deeply disturbed by the International Criminal Court's (ICC) arrest warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. It was shocking to see two heads of state of Israel, my country of birth, accused of war crimes and crimes against humanity.

I understand the impulse to attack the ICC and its chief prosecutor, Karim Khan, for their actions against Netanyahu and Gallant. Many have focused on the perceived lack of moral equality between their conduct and that of the three Hamas leaders behind the October 7 massacre, whose arrest warrants Khan also sought. But moral equivalence is irrelevant to the ICC's mandate, which is to investigate credible allegations that war crimes and crimes against humanity have been committed. It is my family history and three decades spent as a human rights and rule of law campaigner that compel me to defend the ICC's decision to seek justice in relation to alleged crimes related to the Israel-Hamas war.

I have documented the ongoing crimes against humanity in North Korea's concentration camps and helped Congolese authorities prosecute war criminals, including fighters who used rape as a weapon of war. I believe that laws matter, perhaps never more than in times of war. Those involved in waging the war between Israel and Hamas cannot be exempt from the universal laws of war and human rights. That is why I was deeply disturbed by the reactions of American politicians, including President Joe Biden and congressional leaders, to Khan's request for arrest warrants against Netanyahu and Gallant, with Biden summarily calling the warrants “outrageous.” Even before the warrants were requested, U.S. Senator Lindsay Graham (R-SC) and 11 fellow senators threatened retaliation: “Target Israel, and we will target you. If you continue… we will end all American support for the ICC, sanction your employees and partners, and ban you and your families from entering the United States. You have been warned.”

This response contrasted sharply with the ICC's overwhelming bipartisan support last year for the ICC's decision, also at Khan's request, to issue an arrest warrant for Russian President Vladimir Putin for alleged war crimes in Ukraine. Biden responded by ordering the U.S. government to turn over evidence of Putin's alleged crimes to the ICC. Graham praised the ICC's move as “a giant step in the right direction for the international community” and said that not charging Putin “would irreparably damage the world order based on the rule of law that was established at the end of World War II.” This vigorous defense of the ICC was commendable and important, especially given that Russia had initiated criminal proceedings against Khan and several ICC judges in retaliation for Putin's indictment.

Respect for the rule of law is humanity's best hope for an orderly, peaceful world. Respect for the rule of law requires a commitment to fundamental principles such as respect for judicial and prosecutorial independence and the integrity of judicial proceedings. These principles require us to accept that Khan may have credible evidence that both sides in the Israel-Hamas war committed crimes. We must also have confidence that the ICC judges tasked with reviewing that evidence will reject arrest warrant requests in court if the evidence proves insufficient.

Instead of respecting the rule of law, the U.S. House of Representatives has followed Kremlin tactics and passed legislation on largely partisan lines sanctioning the ICC for demanding arrest warrants against Netanyahu and Gallant. Senate Majority Leader Chuck Schumer (D-NY), an ardent defender of Israel and the highest-ranking Jewish politician in U.S. history, has so far wisely resisted the House's dangerous impulse. Schumer, Senator Ben Cardin (D-MD), and other longtime Israel supporters should resist cutting a bipartisan deal that punishes the ICC for its investigative activities. An opposite outcome would put politics above the rule of law.

I met Khan, a former British prosecutor who previously led a United Nations team investigating IS crimes in Iraq. Like my colleagues, I am confident that this highly qualified prosecutor will carry out his duties with honour and integrity and that the ICC judges will make their decisions impartially.

Finally, it is worth recalling that Israeli prosecutors and the Israeli judicial system saw fit to charge Netanyahu with a series of bribery, fraud and breach of trust charges that could land him in an Israeli prison for several years. The Israeli judicial system only brought these charges after following due processes. The ICC prosecutor is also following due processes with regard to his arrest warrant applications against Netanyahu and Gallant. We have seen nothing to suggest that Khan is in any way biased against Israel. In fact, the arrest warrant applications against three Hamas leaders are strong evidence that he is guided by the facts and nothing else. Sticking to the facts is the job of a fair, unbiased prosecutor.

Congress should resist sanctioning the ICC simply for doing its job.

IMAGE: The International Criminal Court in The Hague.