U.S. Legislators Push Back Against Possible ICC Warrants for Israeli Officials

Latest Developments

In response to reports that the International Criminal Court (ICC) in the Hague could soon issue arrest warrants for one or more senior Israeli officials, Speaker of the U.S. House of Representatives Mike Johnson (R-LA) on April 29 called for the Biden administration to “immediately and unequivocally demand that the ICC stand down.” Johnson went on to say that Congress would “use every available tool to prevent such an abomination.”

Members of Congress from both the Democratic and Republican parties have warned that any ICC warrants against Israeli officials would be met with a congressional response. In February 2023, Sens. Tom Cotton (R-AR), Ted Cruz (R-TX), and Marco Rubio (R-FL) introduced legislation that would sanction ICC officials and associates who investigate or prosecute troops or officials from the United States or allied countries, including Israel, that are not ICC members. According to an April 29 Axios report, the House is considering legislation to mirror the Cotton bill.

Expert Analysis

“ICC warrants for Israeli officials would be disastrous for U.S. national security, the Middle East, and the ICC. Such warrants would create a precedent for similar warrants against U.S. officials, torpedo hostage relief efforts by emboldening Hamas, and cripple the Saudis’ ability to proceed with normalization. Congress will respond to such warrants with sanctions on ICC officials and a halt to U.S. cooperation with the ICC, which is crucial to the ICC’s ability to operate.” —Orde Kittrie, FDD Senior Fellow

“A decision by the ICC to issue arrest warrants for Israeli officials would be a clear abuse of the court’s limited authority. Neither the United States nor Israel is a member of the ICC, and both Democrats and Republicans in Washington have consistently rejected the court’s egregious overreach in the past. This case should be no different. If the ICC proceeds with warrants, Congress and the Biden administration should be prepared to impose immediate consequences.” — Nick Stewart, FDDA Senior Director of Government Relations

“Our democratic ally is battling a genocidal terror regime in accordance with the laws of armed conflict, while Hamas is trying to maximize civilian casualties — both Israeli and Palestinian — and ignite a regional war. If the ICC moves forward with prosecuting Israeli leaders, it will be a win for the terrorists who aim to isolate and delegitimize the Jewish state.” —Enia Krivine, Senior Director of FDD’s Israel Program and National Security Network

U.S. Is Not a Member of the ICC

Since the ICC’s founding in 2002, every U.S. administration, of both parties, has refused to join the court, fearing its politicization and misuse. On April 2, 2021, Secretary of State Antony Blinken said, “We maintain our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.” In a press briefing on April 29, 2024, State Department spokesman Vedant Patel reiterated the U.S. position: “[O]ur position is clear. We continue to believe that the ICC does not have jurisdiction over the Palestinian situation.” Like the United States, Israel has also declined to join the ICC.

If arrest warrants are issued, 124 countries that are members of the ICC are treaty-bound to honor them. The substance of any “war crimes” charges that would leveled by the ICC against Israeli officials has yet to be clarified. In 2021, the ICC opened an investigation into alleged war crimes by Israelis and Palestinians in Gaza and the West Bank, including eastern Jerusalem.

The ICC’s Limited Jurisdiction

The ICC is a court of last resort, limited by its charter to prosecuting only those cases which involve the most serious international crimes and in which local judicial systems are deemed unwilling or unable to hold violators accountable. ICC prosecutor Karim Khan has stated that Israel “has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law.” The IDF Military Advocate General is conducting ongoing “criminal investigations in a number of incidents” of alleged misconduct related to the Gaza war. Issuing ICC arrest warrants for Israelis would be incompatible both with Khan’s statement and with Israel’s clear willingness and ability to police alleged IDF misconduct.

Related Analysis

Possible Arrest Warrants for Israeli Leaders Expose Perversity of ICC, by Orde Kittrie

“Israeli Officials Hold Emergency Meeting to Discuss Possible ICC Arrest Warrants,” FDD Flash Brief

“International Criminal Court,” by Orde Kittrie

“New ICC Prosecutor Provides Opportunity for Closing Investigations of U.S. and Israel,” by Orde Kittrie