Biden should not resort to Trump-style aggression following events at the ICC

A generational divide in the US is pushing Biden towards pressuring Tel-Aviv. But the ICC’s intervention brings pressure from the right. The president must stay focused on bringing peace to Gaza and the region.

Expert comment Published 22 May 2024 3 minute READ

The temperature has been steadily rising on USIsrael relations this month. President Biden warned on 8 May that he would halt certain weapon deliveries if Israel launched a major ground invasion of Rafah. But new polling suggests this did little to improve his approval ratings and that he may be losing momentum in key swing states.

Meanwhile Gaza war protests were surging across US college campuses, underscoring a generational change in attitudes among Jewish Americans, with younger American Jews less wedded to supporting Israel than their elders. Younger Jewish Americans are, for example, far less willing to support sending aircraft carriers to defend Israel and less supportive of Biden visiting the country. 

Never before has the court announced an impending arrest warrant of a head of a democratic state that is an ally of the US. 

On Monday, political pressures shifted once again, as the ICC Chief Prosecutor announced that he is seeking an arrest warrant for Israeli Prime Minister Benjamin Netanyahu and Israeli Defence Minister Yoav Gallant for crimes against humanity and war crimes in Gaza. 

The fact that these are being sought alongside arrest warrants for Hamas’s leaders failed to dampen recriminations against the court from elected officials in Washington.

Responding to events at the ICC

The court’s announcement was extraordinary. Indicting sitting heads of state has been controversial, but it is no longer novel. But never before has the court announced an impending arrest warrant of a head of a democratic state that is an ally of the US. 

Biden immediately condemned the announcement, calling it ‘outrageous’. Even so, the president is being outflanked by critics to his right, making his broader effort to restrain Israel from a full-scale invasion of Rafah even more politically fraught.

Biden must now decide how to reconcile developments at the court with his broader Israel policy. 

The relationship between the US and the ICC has often been tortured. In September 2020, US Secretary of State Mike Pompeo, a key member of the Trump administration, announced that the US had sanctioned the ICC’s prosecutor, Fatou Bensouda, and restricted visas for individuals that were believed to be contributing to investigations of US personnel.

The Biden administration had managed to turn this around. In April 2021, it lifted the Trump administration’s sanctions on court officials. The following March, Beth Van Schaack, a veteran of international justice with a long track record working to support the ICC, was confirmed as US Ambassador for Global Criminal Justice. 

Now, the president will need to decide whether to respect the ICC’s independence and let it seek justice as it sees fit, or to try and stall or even block any effort to hold Israeli leaders to account. 

An effort to curtail the court’s independence would alienate many of the US’s close allies and partners.

Biden is already coming under domestic pressure to pursue a form of Trump-style sanctions. 

House Republicans are preparing legislation under the name of the Illegitimate Court Counteraction Act, which would block ICC officials from entering the US and remove their visas. Secretary Blinken has indicated his willingness to work with Republicans in the Senate to pursue a bipartisan response to the ICC.

The Biden administration should avoid using sanctions to interfere with the court. Supporting these measures would be counterproductive and undermine the credibility of the president’s commitment to multilateralism. And an effort to curtail the court’s independence would alienate many of the US’s close allies and partners.

It would also undermine Biden’s ability to differentiate himself as a presidential election candidate who respects liberal values. 

The president supported the ICC’s indictment of Russian President Vladimir Putin – his attack on the prosecutor’s effort to secure an arrest warrant for Netanyahu is already turbocharging allegations that the US has double standards on human rights and international law.

The prospect of an arrest warrant (if confirmed) leading to a trial any time soon is low. The ICC has little enforcement power and has struggled to follow through on arrest warrants against sitting heads of state.

The real impact of the now likely arrest warrants on those responsible for the 7 October attacks, and the war in Gaza is difficult to anticipate. If the prospect for a deal, including a ceasefire, and a return of hostages, hinged on removing the threat of prosecution, the US could bring a resolution before the United Nations Security Council (UNSC).

The Rome Statute allows the UNSC to draw on its Chapter VII authority to vote to defer for 12 months any investigation of sitting officials on the basis that an indictment or arrest warrant would create an impediment to peace and security.  

This would be a legal and legitimate strategy available to the US (or any member of the UNSC) for postponing further action by the court. Of course, the success of this strategy would require the other permanent UNSC members to agree to refrain from using their veto.

Those more optimistic about the power of the ICC continue to hope that the prospect of international accountability before the court will create more momentum for Biden to pressure Israel to fight fair and prompt Netanyahu to ensure adequate humanitarian access in Gaza.  

In the short term, neither of these outcomes seems likely. In fact, the ICC’s announcement is having the reverse effect. 

An arrest warrant might later help to marginalize Netanyahu, but probably only after the war has concluded, and an election has taken place.

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As the academic year draws to a close and universities prepare for the summer, campuses and protests will go quiet, at least for a time. Pressure from a younger generation of voters to withdraw US support may abate, at least until September. A sea change in the US support for Israel seems some way off.  

Biden should play the long game on international justice, let it run its course, and avoid getting caught up in a battle with the ICC. Especially now, it is critical to stay focused on the most urgent problem at hand, which is to save lives, ensure humanitarian access, and deliver a deal that will bring a sustainable peace in Israel and Gaza. 

Working to deliver peace in the region will give the president the greatest prospect of capturing the support of the angered and frustrated communities in America’s universities. But for now, delivering on this policy goal is looking even more difficult.