ICC Prosecutor Karim Khan

International Criminal Court Prosecutor Karim Khan delivers an address before Venezuela's National Assembly in Caracas on April 22, 2024.

(Photo: Pedro Rances Mattey/Anadolu via Getty Images)

'War Crimes Are War Crimes': Biden Rebuked for Decrying ICC Bid to Arrest Israeli Leaders

"Biden will feel he must attack the ICC because it directly implicates his own decision-making to repeatedly defend atrocities and their authors," said one critic.

Human rights defenders around the world on Monday accused U.S. President Joe Biden of double standards and worse after he condemned a decision by the International Criminal Court's top prosecutor to pursue arrest warrants for Israeli and Hamas leaders for alleged crimes committed during the October 7 attacks and subsequent obliteration of Gaza.

Karim Khan, the ICC's chief prosecutor, said the court has formally applied for arrest warrants targeting two Israeli and three Palestinian officials. Khan is seeking to arrest Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for alleged "crimes of causing extermination, causing starvation as a method of war, including the denial of humanitarian relief supplies, [and] deliberately targeting civilians in conflict."

Khan said charges against Hamas leaders Yahya Sinwar, Ismail Haniyeh, and Mohammed Deif include "extermination, murder, taking of hostages, rape, and sexual assault in detention."

A panel of ICC judges will determine whether to issue arrest warrants for any of the suspects.

Biden blasted the effort to arrest Netanyahu and Gallant as "outrageous."

"Let me be clear: Whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas," the president said in a statement. "We will always stand with Israel against threats to its security."

Secretary of State Antony Blinken condemned what he called the ICC's "shameful... equivalence of Israel with Hamas."

Critics were quick to pounce on what some called Biden's hypocritically disparate responses to the ICC's pursuit of arrest warrants for Israeli leaders and for Russian President Vladmir Putin over his invasion of Ukraine.

"What's outrageous is Biden's utter disregard for victims of war crimes," said Mark Kersten, an assistant professor of international law at the University of the Fraser Valley in Abbotsford, British Columbia. "But let's be clear: Biden will feel he must attack the ICC because it directly implicates his own decision-making to repeatedly defend atrocities and their authors."

Sarah Leah Whitson, executive director of Democracy for the Arab World Now, said that "there's certainly no quantitative equivalence between Hamas and Israeli officials in terms of the sheer number of war crimes and crimes against humanity, including humans murdered, homes demolished, hospitals bombarded, journalists executed, aid workers snuffed, land stolen, children starved, men tortured... I could go on and on."

Furthermore, "'equivalence' between two actors has zero bearing on who should be arrested and prosecuted," Whitson added. "The ICC has prosecuted individuals for a single offense irrespective of how it compares to other crimes committed by other actors at the same time."

Former Greek Finance Minister Yanis Varoufakis—who heads the leftist Democracy in Europe Movement 2025—said on social media that "Biden just declared the International Criminal Court null and void because it dared pursue Israel's war crimes which Biden is actively and enthusiastically enabling."

"In the tradition of George W. Bush, the U.S. president has declared the U.S. a rogue state," he added.

According to Israeli officials, 1,139 Israeli soldiers and civilians and foreign nationals were killed during the Hamas-led attacks on October 7. An unknown number of the victims were killed by so-called "friendly fire."

Israel's retaliatory war on Gaza—which is the subject of a genocide case before the International Court of Justice (ICJ)—has killed at least 35,562 Palestinians, mostly women and children, while wounding nearly 80,000 others, according to Palestinian and international officials. At least 11,000 other Palestinians are missing and presumed dead and buried beneath the rubble of hundreds of thousands of damaged or destroyed homes and other buildings.

Approximately 2 million of Gaza's 2.3 million people have been forcibly displaced and at least hundreds of thousands of others are facing growing famine in the northern strip and widespread starvation throughout the besieged coastal enclave as Israeli soldiers and settlers continue to block aid shipments and attack both humanitarian workers and Palestinians desperately trying to receive food, water, medicine, and other necessities. Nearly 1 million Palestinians have fled Rafah as Israeli forces invade and bombard Gaza's southernmost city.

The United States—which provides Israel with billions of dollars in military aid and diplomatic cover—had reportedly been working with Israel on how to thwart the ICC's effort to arrest Israeli leaders. Meanwhile, a dozen Republican U.S. senators earlier this month threatened retaliation against the tribunal if it issued arrest warrants for Israelis.

"Target Israel and we will target you," the lawmakers wrote in a letter that drew rebuke from Khan's office.

Under the American Service Members' Protection Act—also known as the Hague Invasion Act—the president is authorized to use "all means necessary and appropriate" including military intervention to secure the release of American or allied personnel held by or on behalf of the ICC.

U.S. and Israeli officials often note that neither country is party to the Rome Treaty that established the ICC. However, the court "has jurisdiction in relation to crimes committed on the territory of Palestine, including Gaza," as well as "over crimes committed by Palestinian nationals inside or outside Palestinian territory."

Under then-Prosecutor Fatou Bensouda, the ICC in 2021 launched a formal investigation into alleged Israeli war crimes and apartheid in the illegally occupied West Bank, East Jerusalem, and Gaza.

Israeli and Hamas officials reacted angrily on Monday to Khan's move, with Israeli Prime Minister Benjamin Netanyahu calling the application "absurd" and the "new antisemitism" and Hamas spokesperson Sami Abu Zuhri lamenting that it equates "the victim with the executioner."

South Africa—which filed the ICJ case now joined by over 30 nations—welcomed Khan's announcement, with President Cyril Ramaphosa asserting that "the law must be applied equally to all in order to uphold the international rule of law, ensure accountability for those that commit heinous crimes, and protect the rights of victims."

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