Andreas Kluth: The US (with Israel) against the world? That must never happen

Good riddance. Not only for Yahya Sinwar, the evil and now dead mastermind behind the terrorist attack of Oct. 7, 2023, but also for those two other Hamas leaders whom Israel recently killed, Ismail Haniyeh and Mohammed Deif.

Their elimination has a curious side effect, though: It puts in a bind not only the International Criminal Court in The Hague but also the lame-duck administration of President Joe Biden in the United States, as well as all those American legislators who want their country to be seen as supporting, rather than undermining, international law.

Those three dead terrorists, as it happens, were also the trio for which the ICC’s prosecutor, Karim Khan, had sought arrest warrants earlier this year, citing vile “crimes against humanity.” Without them, attention now shifts to the other two arrest warrants Khan demanded at the time — if not for the same reasons. Those named are Israel’s prime minister, Benjamin Netanyahu, and its defense minister, Yoav Gallant, on charges including “starvation of civilians” in the Gaza Strip and other “inhumane acts.”

Khan’s applications are now pending before a tribunal of judges, which has been reading amicus briefs and will eventually decide whether to grant the prosecutor’s requests. Even if the applications go through, there’s no chance that anybody will ever be handcuffed: Israel, like the U.S., is not a party to the Rome Statute that created the court. The effect will instead be political, and even geopolitical.

That’s because these two of Khan’s five applications caused indignation not only in Israel but also in the United States, to an extent that endangers America’s acceptance of international law as such. Biden, who reliably if sometimes reluctantly has Israel’s back, immediately rejected the charges against Netanyahu and Gallant as “outrageous.” America’s pro-Israel right was and is incensed by the “the moral equivalence.”

Nothing in Khan’s applications had in fact implied “equivalence.” The five hypothetical cases would have unfolded differently, each with its own charges, evidence, timeline and verdict. Khan was merely trying to show the world that he was not applying international law “selectively.”

But the damage is done. Republicans in Congress, with support from dozens of Democrats, have declared war on the ICC. A bill in the House of Representatives would sanction all those — lawyers, judges, civil servants, clerks — who assist the ICC in investigating these cases, and even their families, by blocking assets, banning travel and the like. In effect, it would impede the practice of international criminal law. Another version is in the Senate, where sponsors are calling the ICC a “kangaroo court.”

This fundamentalist attack on the legitimacy of the court is both surreal and familiar. The U.S. was one of the countries that drafted the Rome Statute in the 1990s but then rejected it. (America has long been wont to flip in that manner, starting in 1920, after it conceived but then spurned the League of Nations.) Sometimes Washington cooperates with the ICC, as when it helps to prosecute Russian President Vladimir Putin for his atrocities in Ukraine. Other times, it threatens to “invade” The Hague.

The U.S. brings a similar ambivalence to the wider system of international law and norms, topped by the United Nations and its tribunal, the International Court of Justice, also in The Hague. Unlike the ICC (which tries individuals), the ICJ handles disputes between states, and South Africa has brought a case accusing Israel of genocide in the Gaza Strip. Israel “rejects this blood libel with disgust,” and the U.S. has its back.

Even though this U.N. court in theory has jurisdiction over both the U.S. and Israel, it’s hard to imagine either country accepting any ruling that finds genocide. In that event, the matter would go to the U.N. Security Council. But the U.S. wields a veto there, and would shield Israel as it usually does, even though the Biden administration concedes that such veto politics (also practiced by Russia and China) cumulatively undermines the international order.

Israel has gone further in turning against the system. Speaking at the U.N. last month, Netanyahu called the organization a “swamp of antisemitic bile.” This month, Israel declared the U.N. Secretary General, Antonio Guterres, persona non grata, in theory banning him from entering Israel altogether (whether this is legally possible is moot). Rhetorically, Israel is but a step away from exiting the U.N. altogether, and thereby leaving the international community.

If the U.S. tethers itself unconditionally to Israel, it would be on the same trajectory. This path is unbelievably dangerous. The U.N. system and all the associated organs of multilateralism and law were created — in the rubble of World War II and under American stewardship — to temper the inherent anarchy of world affairs. Was it ever meant to be perfect? Of course not. Its purpose was best described as not “to bring us to heaven, but to save us from hell.”

The two courts in The Hague, moreover, are staffed by professionals with integrity and dedication to evidence. Israel can win these cases. It can also preempt any indictments at the ICC (which is meant to complement rather than replace functioning domestic legal systems) simply by credibly investigating the charges itself. The U.S., meanwhile, should cooperate with both courts, while making clear that it recognizes their authority in principle, even if that means parting ways with Israel one day.

For their part, the judges now deciding on Khan’s two remaining applications should of course hew to the evidence, but also be aware that the optics of seeking only two live individuals, both Israeli, look bad. Meanwhile, as the rest of us await the ICC’s decision, we can at least take comfort that Sinwar has, in every way but the legal, already met a just end.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Andreas Kluth is a Bloomberg Opinion columnist covering US diplomacy, national security and geopolitics. Previously, he was editor-in-chief of Handelsblatt Global and a writer for the Economist.

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