Last week, International Criminal Court Prosecutor Karim A. A. Khan, KC, unveiled requested indictments against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. At the same time, he requested indictments for three top Hamas leaders. The request tossed around words like “crimes against humanity,” “deliberate starvation,” and lest we suspect Mr. Khan is an antisemitic international bureaucrat, he was also pretty cross about all that Hamas hostage-taking and rape stuff on October 7.
But get this: When Speaker of the House Mike Johnson, Senator Tom Cotton, and multiple others warned the ICC of the risks of going after non-parties (Israel, the United States), and the potential consequences (sanctions, at the very least), the ICC threatened them:
Good thinking, there, Mr. Khan. Especially when among those who have slammed the ICC for its extrajudicial indictments of Israel’s democratically elected leaders, we find Joe Biden, Chuck Schumer, Rishi Sunak and dozens of other leaders of the free world.
Senator Cotton joined us on the pod with some choice words for what he called a “Kangaroo Court,” promising sanctions and more to come for Mr. Khan and others.
Diving into the nuts and bolts of this assault on sovereignty by the ICC: The Court was created in 1998 by a treaty called the Rome Statute. In classic Bill Clinton fashion, his administration rep voted against the Statute, but in Clinton’s last days as president, he signed it, at the same time stating he had no intention of submitting it to the Senate for ratification. (WTF?) After George W. Bush was elected, the United States unsigned the Rome Statute.
Here’s the thing: Critics have always warned that the Court would be used not to hunt down the Xi Jinpings and Vladimir Putins of this world, but to harass the “international community’s” favorite bugaboos, the U.S. and Israel. Defenders of the Court responded that this was inconceivable because neither America nor Israel are parties, and both have robust judicial systems that, per the Rome Statute, preclude involvement by busybody international bureaucrats. Oh, those sillies, that’s not how it works.
Fast forward to 2015, and the ICC admitted a “State of Palestine” — governed by Hamas? the Palestinian Authority? who cares! — and it is by request of that “State of Palestine” that we are witnessing Mr. Khan’s attack on Israel’s right to self-defense. In 2020, the Court, perturbed that critics accused it of occupying itself solely with hunting down African mass murderers, opened an investigation of the United States’ actions in Afghanistan. That was not well received, and while Donald Trump was still president, the ICC prosecutors were sanctioned by the United States government. The investigation was then pushed to the back burner. But still, Palestine!
So what about Mr. Khan’s bill of particulars against Netanyahu and Gallant? First, because of the indictment, states parties to the ICC can arrest either should they set foot on their territory. The German government has already announced it will do so. (The Holocaust was so last century. What have you done to the Jews lately?)
Next, there’s a panel of ICC judges who will decide whether to approve Khan’s request to hunt down the Israelis and Hamas guys. Perhaps reason will prevail. Perhaps the judges will consider the U.S. sanctions that may face them and think again. But Khan has maneuvered carefully to ensure the judges decide with him: First, “requested” indictments are not usually public, let alone revealed on CNN. Second, Khan accelerated and publicized the effort (derailing an ICC investigation with which the Israelis were cooperating) to optimize speed and minimize the facts before the panel. So, the conclusion appears almost foregone.
If the indictment is approved, all states parties to the Rome Statute are under legal obligation to arrest the individuals concerned — notwithstanding sovereign immunity, head of state immunity, or any other principle of international law that would ordinarily apply. And it’s off to the races.
Crazy we would have thought this court was a bad idea!
Congress appears poised to act against the Court, with soft backing from the Biden administration. We’ll see whether they’re serious about protecting the sovereignty of the United States and its allies soon enough.
HIGHLIGHTS
In response to a letter you and some other Republican Senators sent to the ICC prosecutor Karim A. A. Khan warning against targeting Israeli officials, Khan threatened to prosecute you. What do you have to say to Khan now?
TC: This is why the International Criminal Court is better called the International Kangaroo Court. One of many reasons, in fact, a prosecutor who can dish it out but can't take it and threatens his critics with prosecution themselves in total disregard for principles of freedom of speech. But since he can't even take that, I'm sure he's not going to appreciate that I also believe that he could be himself open to criminal charges in the United States, certainly not under this administration, but maybe come January. So maybe he's going to get a taste of his own medicine.
Does Khan have the authority to indict Netanyahu even though Israel is not a party to the ICC?
TC: He has no such authority, Dany, and the allegations are revolting. I would point out that President Biden when he saddled up his high horse against it and denounced the moral equivalency of indicting both Sinwar and Netanyahu do not actually refute the underlying revolting charges, the claims for instance Israel is trying to starve children in Gaza or that Israel has intentionally targeted civilians in Gaza. Israel is fighting the most careful war, certainly urban war probably in the history of mankind and going out of its way to avoid civilian casualties. The civilian suffering and the civilian casualties in Gaza are solely the responsibility of Hamas for using civilians as human shields and political tools in their strategy to try to beat Israel politically knowing they can't beat them militarily.
Karim Khan, this rogue prosecutor at the International Criminal Court is making false allegations against Israel in addition to the moral equivalency when again, he has no jurisdiction. Israel has not ratified the Rome statute that created the court. The United States has not done so, yet the court also targeted our service members just a few years ago for their supposed crimes in Afghanistan.
Having been a US soldier in Iraq, what do you make of the ICC’s allegations against Israel’s war in Gaza?
TC: I don't want to compare what I experienced in Baghdad, for instance, to what Israeli troops are experiencing in Gaza. We were facing an insurgency that was deadly and that killed Americans, but they did not have much in the way of safe haven. They did not have the powers of a de facto state. They did not have years to prepare. That's exactly what Israel's faced in Gaza. Hamas has been the de facto governing authority in a quasi statelet for 17 years with billions of dollars of foreign aid pouring in that ended up not going to create hospitals or schools or housing developments, but develop miles, and hundreds of miles of tunnels underground through which Hamas can operate, both hide from Israeli warplanes and also be used to ambush Israeli troops. So what Israel is facing is much more challenging than what I personally faced in Baghdad.
Nevertheless, Israel is going far above and beyond the requirements of the laws of war, and it's not just me saying that, take an expert like John Spencer at our own military academy at West Point at the Urban Warfare Institute, he has compared it historically to urban battles that we have fought in places like Iraq or the Philippines or that other nations have fought and said that Israel's actions, for instance, to drop leaflets or to send text messages or to drop inert bombs to kind of give a physical warning that more is coming is far above and beyond what is required of any military and it puts their own troops at greater risk. But this is something that Israel has long done, that Israel's elected leaders in no small part because of the decent humane Israeli people view that they don't want to kill civilians if they can at all avoid it, and they're willing to take on more risk to avoid civilian deaths that are caused by terrorists like Hamas or Hezbollah to its north.
And that just can't be questioned. And the reason that Joe Biden seems to be questioning it, I think is potentially for electoral considerations. He's worried about losing the small but very vocal pro-Hamas minority in his own party. Or maybe even worse, it could be that those around him who have long opposed Israel and tried to find ways to undermine Israel, want to use those electoral concerns as a pretext to do what their old boss, Barack Obama always said he wanted to do, which is create daylight between Israel and the United States.
If the ICC thinks it can investigate Israel, what does that mean for future American military operations?
TC: Remember that in 2019 when the International Criminal Court opened investigations, reopened investigations I should say from the Obama era about supposed war crimes American soldiers committed in Afghanistan, Donald Trump lowered the boom on them. He revoked the prosecutor's US visa, he sanctioned other ICC leaders and he labeled the court of threat to the United States. This is all pursuant to an act of Congress, the American Service-Members' Protection Act, which is as you know probably is sometimes humorously nicknamed The Hague Invasion Act, which authorized the president to take all necessary means to protect American troops from this kind of thing. But if we allow this to happen, of course it's a test case not just for Israeli troops and Israeli leaders up to and including the Prime Minister, but for American troops in our leaders.
Why is the ICC so hostile to Israel and America?
TC: It all gets back, I should say, too to the hostility of international bureaucrats like Karim Khan that to Israel and America, they all envision that we are going to one day move from this outdated, antiquated, chauvinistic system of national government serving their own nation's interest to some transnational globalist government of lawyers and diplomats and professors and journalists. America and Israel refute that because we are the two democracies that use our military every single day to protect our people and to protect the free world. Israel obviously is doing that right now in Gaza. It's had to do it routinely over its life. And we've been doing that now for almost 80 years since the end of World War II to protect not only ourselves but our allies around the world.
Why is Congress thinking about sanctioning ICC officials?
TC: The only reason Congress is even talking about sanctions, that I've introduced legislation with some colleagues from the House is that the Biden administration revoked all those actions that Donald Trump took pursuant to extant law. Just like Barack Obama before Joe Biden when he came into office, he reversed a lot of George Bush's actions and cooperated with the ICC even though they were beginning to investigate the American troops actions in Afghanistan.
So I do think that it's called for, there are other actions we could also take, as I mentioned earlier, Karim Khan might find himself in a American prosecutor's crosshairs come next year when there's a new attorney general that actually puts American interests first. And if he thinks that it's all fun and games to slap an arrest warrant on Benjamin Netanyahu so he can't travel internationally, maybe he should get a taste of his own medicine.
There's also the potential to work with our allies, maybe cajole them, maybe put a little pressure on them against any kind of cooperation with the ICC in a way that would, for instance, limit Benjamin Netanyahu's travel or provide material assistance to the court. I don't think there's one single way that we can express our strong resolution that this court has acted grievously out of its jurisdiction and can't be allowed to continue this in the future.
Is there a State of Palestine and why is it considered a party of the ICC?
TC: There is no such thing as a State of Palestine. And an international organization, one that is part of a broader constellation of these globalist organization that unfortunately receive millions of US tax dollars, has no business admitting the so-called State of Palestine as a member or as a party. It's one thing if some misguided country wants to engage in diplomatic relations with the so-called State of Palestine, but for a multilateral international organization to do so, it is the height of folly. And it does not give any jurisdiction over Israel to say that the so-called State of Palestine, which does not exist today and has never existed somehow is a party to this treaty and therefore the court has jurisdiction.
How have the UN and its specialized agencies enflamed antisemitism?
TC: UNRWA, the UN Relief and Works Agency is a sordid rat’s nest of antisemitism reflecting the broader antisemitism within the United Nations constellation of organizations. There is a United Nations High Commissioner for Refugees, and somehow that office is suitable for every other legitimate, genuine refugee of war around the world, yet the so-called refugees in Gaza or Judea and some area elsewhere for the Holy Land need their own specialized agency, the only thing in the world. And of course, in any case where you have one single standard that you target Israel with that you don't apply anywhere else, it is of course an anti-Semitic policy. America needs to show that we mean what we say in these laws and that we're not going to provide funding to United Nations agencies or organizations if they take the step of recognizing a so-called State of Palestine.
Now, I don't expect Joe Biden to do that. I don't expect Democratic administrations to do that. I mean, they've been trying to do it all along. Joe Biden's first instinct after the attack on Jews since the Holocaust was to roll out the old two-state solution once again, which has failed time and time again. It failed in part because the leaders in Gaza or of the Arab populations in Judea and Samaria, in addition many, if not most of their people, don't want two states, they want one state, an Arab state from the river to the sea, as they often chant, cleansed of all Jews.
Can Khan be indicted in the US even if Congress does not pass a specific crime against cooperating with the ICC?
TC: We're exploring that right now, Marc. There are a few statutes that look like they might merit more investigation. One is the Material Support for Terrorism Statute. As both of you know, that's a fairly broad and sweeping law against providing any support to Hamas, which I remind you is a terrorist organization, not a charity. And in some of the statements that Karim Khan has made or in the written documents behind this latest action, it suggests that he might indeed or his organization might indeed have provided some kind of material aid or assistance to Hamas to get the information it needed to take these actions. I think that warrants further investigation. I doubt that Merrick Garland's Department of Justice is going to do it, but I suspect a new Department of Justice might do it come January.
Will Congressional action against the ICC be bipartisan?
TC: We've been in conversations in both the House and the Senate with some Democrats who understand that this is not only an outrage to Israel in the time of it's fighting a war of survival, but also a threat to our own service members and ultimately a threat to elected representatives in Congress and future presidents and cabinet members too. So I do expect that we would have bipartisan support for the right kind of legislation.
Read the full transcript here.
SHOWNOTES
Letter to Karim A. A. Khan KC (US Senate, April 24, 2024)
Response to US Senate Letter from Khan (International Criminal Court, X, May 3, 2024)
Statement of ICC Prosecutor Karim A.A. Khan KC: Applications for arrest warrants in the situation in the State of Palestine (ICC Statement, May 20, 2024)
What ICC War Crimes Warrants for Netanyahu, Hamas Leaders Would Mean (Bloomberg, May 20, 2024)
ICC prosecutor seeks arrest warrants against Sinwar and Netanyahu for war crimes over October 7 attack and Gaza (CNN, May 20, 2024)
ICC seeking arrest warrants for Hamas leaders and Israel’s Netanyahu (United Nations News, May 20, 2024)
ICC’s move against Benjamin Netanyahu puts Joe Biden in diplomatic and political bind (Financial Times, May 21, 2024)
Biden says ICC move on arrest warrants for Israeli leaders "outrageous" (Reuters, May 20, 2024)
Matthew Miller Statement Following ICC Announcement (Matthew Miller, State Department, May 20, 2024)
House GOP weighs punishing ICC for seeking arrest warrants for Israeli officials (Washington Examiner, May 20, 2024)
UK’s Sunak slams ICC arrest warrant for Netanyahu (Politico, May 21, 2024)
EU split over ICC’s Israel and Hamas arrest warrants bid (Financial Times, May 21, 2024)
Israel-Gaza war live: ICC arrest warrant ‘attempt to deny Israel the right to defend itself’, says Israel defence minister (The Guardian, May 21, 2024)
Netanyahu compares ICC arrest warrant request to anti-Israel protests: ‘What the new antisemitism looks like’ (Greg Norman, Fox News, May 20, 2024)
Republican lawmakers blast ICC over Netanyahu warrant (Politico, May 20, 2024)
Senator Cotton Statement on ICC (Tom Cotton, X, May 20, 2024)
Senator Cotton Introduces Legislation Against ICC (Tom Cotton, X, May 20, 2024)
'Gullible' Biden admin lambasted by Sen. Cotton for 'de facto' supporting Hamas victory over Israel (Fox news, May 14, 2024)
End the International Criminal Court (The Editors, National Review, May 21, 2024)
Does ICC Prosecutor Khan have a case against Netanyahu and Gallant? Experts doubt it (Jeremy Sharon, Times of Israel, May 21, 2024)
The ICC Disgraces Itself Over Israel (Editorial Board, WSJ, May 20, 2024)
Defund ICC’s ‘kangaroo court’ as it wages anti-Israel lawfare (Richard Goldberg, New York Post, May 20, 2024)
House lawmakers pushing to sanction ICC over potential Israel arrest warrants (Jewish Insider, May 21, 2024)
Termination of Emergency With Respect to the International Criminal Court (Office of Foreign Assets Control, April 5, 2021)
Ending Sanctions and Visa Restrictions against Personnel of the International Criminal Court (Antony J. Blinken, U.S. Department of State, Press Statement, April 2, 2021)
And to top off the the injustice of the ICC, it's been reported that Israel and the IDF have evacuated close to 800,000 civilians in ten days from Rafah. The Biden administration said it couldn't be done. Certainly looks like crimes against humanity to me. It's a shame that Senator Tom Cotton is the exception with moral clarity rather than the rule as it should be.