The ICC’s Accusations Of War Crimes Don't Deter Biden From Supporting Israel

President Joe Biden swiftly condemned the Monday decision by the International Criminal Court’s top war crimes prosecutor to seek arrest warrants for Israeli leaders over the U.S.-backed military offensive in Gaza — doubling down on his administration’s support for Israel’s war effort, despite growing anger from the international community and his own Democratic voter base.

In a highly-anticipated announcement, ICC prosecutor Karim Khan requested warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant over their siege on the Palestinian enclave that, almost eight months in, has killed more than 35,000 people and displaced 80% of the population.

Khan is also seeking arrest warrants for three Hamas leaders — Yahya Sinwar, Mohammed Deif and Ismail Haniyeh – over their role in the Oct. 7 attack on southern Israel that killed about 1,200 people and saw 250 taken hostage.

Khan accused all five figures of committing war crimes and crimes against humanity both in Gaza and in Israel. Netanyahu has condemned the allegations as a “disgrace” and antisemitic. Hamas denounced the charges against its own leaders, saying the move “equates the victim with the executioner” and arguing the group has the right to resist Israel’s occupation.

While Israel is not a member of the ICC, the ICC can still prosecute Israeli officials because the crimes were allegedly committed by Israeli forces on Palestinian territory, and the ICC recognizes Palestine as a member state.

Without mentioning the arrest warrants for Hamas leaders, Biden called Khan’s efforts to seek warrants against Israeli leaders “outrageous.”

“Let me be clear: We reject the ICC’s application for arrest warrants against Israeli leaders,” the president said Monday at a Jewish American Heritage Month event at the White House. “Whatever these warrants may imply, there is no equivalence between Israel and Hamas. And it’s clear Israel wants to do all it can to ensure civilian protection.”

Biden is not the only U.S. official who has aggressively condemned the ICC’s decision. Speaking before the Senate on Tuesday, Secretary of State Antony Blinken called Khan’s announcement an “extremely wrongheaded decision” that would complicate efforts to secure a cease-fire deal. During the hearing, a protestor shouted at Blinken, saying he will be remembered as the “butcher of Gaza.”

On Monday, State Department spokesperson Matthew Miller faced immediate pushback after suggesting that Israel and the U.S. have more jurisdiction in Gaza than the ICC to prosecute individuals for war crimes.

“We have jurisdiction with the use of our equipment, with the use of our military equipment that we have provided,” Miller said, referring to the fact that Israel is using U.S. weapons in Gaza. Associated Press reporter Matt Lee corrected Miller, saying that supplying weapons to Israel does not give the U.S. jurisdiction over criminal law cases in the occupied Palestinian territories.

Miller claimed he was referring to the Leahy law, which bars the U.S. from giving military aid to individuals and security forces that have committed gross human rights violations.

In January, current and former State Department officials told HuffPost that the U.S. has always given Israel special treatment with regard to potential violations of the Leahy law, and that Washington has declined to stop military assistance even to Israeli units with clear records of abuse.

“Since the Leahy law was passed, not a single Israeli security force unit has been deemed ineligible for U.S. aid, despite repeated, credible reports of gross violations of human rights and a pattern of failing to appropriately punish Israeli soldiers and police who violate the rights of Palestinians,” former Sen. Patrick Leahy (D-Vt.), for whom the 1997 law is named, wrote in a Washington Post op-ed published Tuesday.

“Applying the Leahy law to Israel would not suggest ‘moral equivalence’ with Hamas. Nor will faithfully applying the Leahy law to Israel weaken its security,” he continued. “Our aid to Israel will continue to flow to Israeli units that respect human rights and international law.”

The Biden administration’s attacks against the ICC are particularly notable given the U.S. was supportive of the court’s decision to put out an arrest warrant last year for Russian President Vladimir Putin for alleged war crimes in Ukraine, as journalists and pro-Palestinian groups have pointed out. 

“War crimes are war crimes, regardless of whether they are committed by so-called American allies,” Nihad Awad, national executive director of the Council on American-Islamic Relations, said in a statement on Monday.

“President Biden should not interfere with the clear and credible arrest warrant applications that the ICC prosecutor is seeking against Israeli leaders responsible for genocidal war crimes in Gaza, nor should our nation continue to fund those war crimes,” he continued.  

A panel of three ICC judges will decide whether to grant Khan’s request for the arrest warrants, a process that usually takes about two months. The prosecutor’s decision has so far been supported by at least three European countries — including France, a major U.S. ally — revealing a deeper divide in the West about how to approach Israel’s actions.

“This is not a witch hunt, this is not some kind of emotional reaction to noise,” Khan told CNN’s Christiane Amanpour on Monday. “We’ve been criticized for going too slowly, criticized for going too fast. It’s a forensic process that is expected of us as international prosecutors, as an independent court, to build evidence that is solid, that will not dissolve in the courtroom. And that’s what we’ve done.”

Israel is also facing accusations from South Africa that it is committing genocide against Palestinians before the International Court of Justice, a separate court from the ICC. The ICJ is a civil court that focuses on cases between countries, whereas the ICC is a criminal court that focuses on cases against individuals accused of war crimes.

On Monday, Biden said that Israel’s military campaign in Gaza is “not genocide,” going against the claims being made at the ICJ as well as in the U.N. special rapporteur’s report earlier this year, which also concluded that Israel is committing genocidal acts toward Palestinians.