The ICC Wants to Prosecute Israeli Leaders. The U.S.’s Rejection Threatens Rules-Based Order

When the International Criminal Court’s chief prosecutor Karim Khan unveiled this week his intention to seek arrest warrants for top Israeli and Hamas leaders over respective violations of international humanitarian law, both parties responded with predictable outrage. But perhaps the most notable reactions came from the U.S. and the U.K. governments, both of which rejected the ICC’s efforts to prosecute Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant as “outrageous” and “deeply unhelpful.” U.S. Secretary of State Antony Blinken indicated on Tuesday that the Biden administration would work with Congress to formulate “an appropriate response,” which could include sanctions against the ICC.

Biden claims the ICC is drawing a false equivalence between Israeli and Hamas leaders

Both governments’ criticisms of the ICC prosecutor rest on two primary points. Their first and primary argument is that the charges present a false equivalence between the leaders of a democratically-elected government and those of an internationally-recognized terrorist organization. But a simple reading of the charges, which were unanimously backed by a panel of international lawyers, shows that this is not the case. While Hamas and Israeli leaders both face allegations of committing war crimes and crimes against humanity, the charges they are facing are entirely distinct. Whereas Hamas leader Yahya Sinwar and other top Hamas officials Mohammed Diab and Ismail Haniyeh have been accused of extermination, murder, hostage-taking, rape and torture, the charges facing Netanyahu and Gallant include starving civilians, willfully causing great suffering and death, and intentionally directing attacks against a civilian population.

At no point does the prosecutor draw any direct comparisons between the two sides. “Israel, like all states, has a right to take action to defend its population,” Khan wrote in a lengthy statement outlining the charges. He notes, however, that this right does not absolve Israel or any other state’s obligation to comply with international humanitarian law. “Notwithstanding any military goals they may have, the means Israel chose to achieve them—namely, internationally causing death, starvation, great suffering, and serious injury to body or health of the civilian population—are criminal.”

Tellingly, neither the U.S. nor the U.K. government appear to dispute the characterization of the prosecutor’s charges. Both governments have decried the high civilian death toll in Gaza as well as the insufficient efforts on the part of the Israeli government to ensure that enough humanitarian aid gets into the Strip. Indeed, the Rafah border crossing, through which the vast majority of aid gets into the Strip, has been shuttered since the Israeli military seized it on May 7. Delivery trucks destined for Gaza have been repeatedly obstructed by Israeli settlers in the West Bank, reportedly with the assistance of some Israeli security forces.

“The United States is not making a substantive argument on the merits of the case; they’re not disputing the fundamental underlying facts,” Dylan Williams, the vice president for government affairs at the U.S.-based Center for International Policy, tells TIME. “Instead, they are making largely cosmetic arguments about the optics of going after both Hamas officials and top Israeli officials. This is as if they’re critiquing a political communication strategy.”

Read More: What ICC Arrest Warrants Would Mean for Israel and Hamas Leaders

The ICC presides over crimes against humanity, not ceasefire negotiations

It’s in a similar vein that the U.S. and U.K. governments make their second point, which is that the ICC’s bid to hold Israeli leaders accountable risks jeopardizing ongoing efforts to reach a ceasefire agreement and secure the release of the dozens of hostages who remain trapped in Gaza. But securing a ceasefire, as the U.S. and other country mediators have sought to do over the past several months, is not the job of the ICC. The court’s raison d'être, as established in the Rome Statute, is to prosecute suspected perpetrators of genocide, crimes against humanity, and war crimes—a role that is accepted by 124 party states, including the U.K. Neither the U.S. nor Israel are party to the ICC and thus do not recognize its authority; a U.K. government spokesperson said that it does not recognize the ICC’s jurisdiction in this case.

“The criticism that the ICC prosecutor did this in the wrong way by making this request at the same time for Hamas officials and Israeli officials or the notion that he did it at a bad time in negotiations fundamentally misunderstands the purpose and function of the court,” Williams says. “The prosecutor has a very narrow and specific job and it doesn’t involve subordinating the law or the court’s processes to political preferences of any party.”

The potential unraveling of the rules-based order

By rejecting the court’s warrant requests, observers warn that the U.S. and the U.K. risk lending credence to the argument that Western countries are applying a double standard to Israel that they don’t apply to other countries. It’s a perception that Khan alluded to in a recent interview with CNN, during which the prosecutor revealed that a senior leader once described the ICC as being “built for Africa and for thugs like Putin” rather than for democratically-elected leaders.

But they also risk undermining the rules-based order that they purport to defend. U.S. and European lawmakers are already keenly aware of how the ongoing war in Gaza has affected their respective countries’ global standing. It’s maybe for this reason that several Western countries—among France and Germany, who is perhaps Israel’s staunchest European ally—have chosen to back the ICC. (Berlin, however, registered its opposition to the simultaneous application for arrest warrants against Hamas and Israeli leaders on the grounds that it gives “the false impression of an equation.”)

“The global south already sees tremendous hypocrisy in how and when international law is applied,” Williams says, “and that’s only been heightened in the last seven months during the Gaza war.”

Whether the arrest warrants are issued will ultimately fall to a panel of three judges at the ICC, whose decision is likely months away. If they are accepted, Netanyahu, Gallant, and the three Hamas leaders would effectively be barred from traveling to any country that falls within the ICC’s jurisdiction—an area that includes most of the Western Hemisphere, as well as parts of Europe, Africa, and Asia—lest they risk the prospect of arrest. As the ICC does not have its own enforcement mechanism, the obligation would fall to its 124 member states.

How world governments choose to respond to the ICC, and whether they opt to enforce any forthcoming arrest warrants, will decide whether this moment serves as a powerful assertion of the importance of international law or, rather, reinforce its impotence instead.

“We are at a pivotal moment for the rules-based international order that the United States tried to build for 70 years,” Williams says. “The question much of the world is asking is do the laws and processes the United States built apply to everyone equally, or are the United States and its friends exempt?”