The revelation of potential arrest warrants for Israeli leaders highlights the shocking bias of the International Criminal Court.

The targeting of Israeli leaders for their attempts to free hostages and prevent future Hamas atrocities is seen as perverse, especially considering that US presidents have refused to join the International Criminal Court for two decades.  

Members of Congress, from both parties, have made it clear that any ICC arrest warrants for Israeli officials would lead to the end of US cooperation with the ICC and result in sanctions on ICC officials. 

Issuing such warrants would be unfounded from a legal and factual standpoint, posing a risk to US personnel and undermining negotiations for peace in the Middle East.

For the ICC to issue an arrest warrant, there must be reasonable grounds to believe that the person has committed war crimes, crimes against humanity, or genocide. 

It is suggested that any such findings against Israeli officials would be politically motivated, rather than based on facts or legal justification.

According to John Spencer, chair of urban warfare studies at West Point, Israel has taken extensive precautions to prevent civilian harm, surpassing what international law requires and what the US did in its wars in Iraq and Afghanistan.

Furthermore, issuing arrest warrants for Israeli officials falls outside the mandate of the ICC. 

Both the Biden and Trump administrations, along with over 330 members of Congress, have rejected ICC investigations of the United States and Israel as illegitimate since neither nation is a member of the ICC.  

The ICC is considered a “court of last resort,” only stepping in when a government is unable or unwilling to police itself. 

ICC prosecutor Karim Khan has acknowledged Israel’s efforts to comply with international humanitarian law through trained lawyers advising commanders and ongoing criminal investigations related to alleged misconduct in the Gaza war.

The White House has stated that the ICC has no jurisdiction in this situation, and House Speaker Mike Johnson has warned that warrants for Israeli officials would undermine US national security interests.

Members of Congress are now drafting legislation to match Sen. Tom Cotton’s bill, indicating strong support for consequences against ICC officials who issue warrants for Israelis.

The United States can also halt cooperation with the ICC, as outlined in the American Servicemembers Protection Act, to prevent the arrest and detention of American military personnel and veterans in foreign countries.

In light of the potential consequences, Congress and the Biden administration must use legal tools to dissuade the ICC prosecutor from issuing warrants for Israeli officials.

Orde F. Kittrie is a senior fellow at the Foundation for Defense of Democracies. He previously served for more than a decade as a State Department attorney and policy official.