A group of close to 200 lawyers from Israel, the United States and around the world have issued a letter to U.S. President Joe Biden urging him “to stop the Chief Prosecutor of the [International Criminal Court] from issuing arrest warrants against Israeli leaders and senior IDF officers.”
The letter, authored by Adv. Nitsana Darshan Leitner, president of the Shurat Hadin-Israel Law Center, specifically called for the invocation of the American Service-Members’ Protection Act (ASPA), which establishes that American allies should be defended against international prosecution.
“There might already be a decision to arrest certain Israeli leaders and senior IDF officers, however, as a result of the intervention of several western states, the prosecutor’s office has not pulled the trigger yet,” Leitner told JNS on Monday.
“Right now it could still go either way, and no one should be surprised if [ICC prosecutor Karim] Khan issues warrants against both Israel and Hamas,” she continued.
“At the same time, several close E.U. countries, as well as the United States, have sent The Hague a clear message not to act now as it could jeopardize any hostage deal and a ceasefire. It’s really uncertain what Khan will do or when, but it’s a snake in the grass waiting to strike,” she added.
Last week, House Speaker Mike Johnson (R-La.) called the prospective warrants “disgraceful” and “lawless,” and noted that they could set a dangerous precedent.
“If unchallenged by the Biden administration, the ICC could create and assume unprecedented power to issue arrest warrants against American political leaders, American diplomats and American military personnel,” he said.
“Instead of wrongly targeting Israel, the ICC should pursue charges against Iran and its terror proxies, including Hamas, for engaging in horrific war crimes,” he added.
Johnson called on the Biden administration to “immediately and unequivocally demand that the ICC stand down” and “use every available tool to prevent such an abomination.”
Israel believes that the ICC could issue arrest warrants against Israeli Prime Minister Bibi Netanyahu, Defense Minister Yoav Gallant and Israel Defense Forces Chief of Staff Lt. Gen. Herzi Halevi.
The warrants would likely be issued against the backdrop of the humanitarian situation in the Gaza Strip, where the IDF is fighting Hamas, as well as accusations that Israel breached the Fourth Geneva Convention related to the Protection of Civilian Persons in Time of War.
“If the ICC moves to arrest Israelis, those named could fear being arrested in any of the member countries,” said Leitner.
“There is an obligation under the Rome Treaty to detain anyone ordered to be arrested by the Chief Prosecutor’s office. It would be really dangerous for senior Israelis and IDF officers to travel to any of the member states,” she added.
Leitner further explained that even while traveling on a diplomatic passport and after receiving assurances from the host country, Israeli officials would be at risk of being placed under arrest through local court orders.
She added that the failure of Israel to turn over requested persons could result in all kinds of economic sanctions. El Al planes could even be barred from landing in certain countries.
“Member states that are allied with Israel would be placed between a rock and a hard place,” she said.
“This is why Israel and the United States must fight these potential warrants. Biden and the U.S. Senate need to straight-out threaten the ICC with retaliation, blacklists and fierce sanctions of their own. They need to let Khan know that arresting Israelis will be the end of the court,” she added.
Last week, Israeli Prime Minister Netanyahu said that if the ICC issued arrest warrants for Israeli political and military leaders over the war against Hamas, it would constitute an “unprecedented antisemitic hate crime” and a “scandal of historical magnitude.”
He went on to state that, “Eighty years after the Holocaust, the international bodies established with the goal of preventing another Holocaust are considering denying the Jewish state its right to defend itself.”
Netanyahu noted that this marks the first time that a democratic country committed to international law is defending itself from accusations of war crimes while at the same time facing existential threats.
Leitner reiterated that while there are many precedents of the ICC going after world leaders, those have to date not include democratic leaders.
“Most prominently, they issued arrest warrants for Russia’s Vladimir Putin and Russian Commissioner for Children’s Rights Maria Lvova Belova for kidnapping Ukrainian children during the war. Several African leaders and military officers have also been targeted,” she said.
“We urge President Biden to employ his authority and moral determination in demanding that the ICC drop any intent to pursue legal action against Israeli and IDF officials,” she added.
Echoing Johnson’s statements, she warned that, “Arrest warrants in The Hague against Israelis are not just a threat to the Jewish state but a threat to all Western democratic states facing terrorist attacks.” JNS
