Editor’s Note: This article is part of our ongoing symposium on the ICC and the Israel-Hamas war.
Innocent children are at risk of starvation in Gaza. For more than a year, U.S. President Joe Biden has demanded that Israel respect international law and allow humanitarian assistance into Gaza. Israeli Prime Minister Benjamin Netanyahu and Attorney General Gali Baharav-Miara agreed that a national investigation should be conducted but disagree on the mechanism to use for such a process. The International Criminal Court (ICC) has issued an arrest warrant against Netanyahu for starvation as a method of warfare.
Instead of leveraging the ICC’s decision to increase his influence, Biden is opposing the Court’s intervention. Added to the mix, some members of the U.S. Congress want to sanction the ICC for investigating activities that should be investigated, without demanding that Israel stop its tactics that are culminating in widespread starvation and launch a meaningful national investigation. Senators Lindsey Graham (R-SC) and Tom Cotton (R-AR) have gone so far as to threaten sanctions against “any country that aids and abets the arrest of any politician in Israel.”
In a 2003 paper, professors Jack Goldsmith and Stephen Krasner labeled the Court as the “long-held dream” of international idealists and concluded that it “may worsen rather than alleviate human rights catastrophes.”
It is time for U.S. realists to adjust to reality.
Biden has offered full U.S. military and political support to Israel, the normal “realist” recipe, but has exerted almost no influence on Netanyahu’s policies. Netanyahu refused to end the assaults on the civilian population in Gaza, or to adopt a ceasefire and rejected the “two state solution.”
The Gaza conflict presents a unique opportunity to understand the functioning of the system of justice created by the ICC’s Rome Statute, and to reexamine U.S. policies.
Unlike the ad hoc tribunals at Nuremberg and for the former Yugoslavia and Rwanda, the Rome Statute created more than a Court to conduct fair international trials. The ICC is the heart of an innovative international justice system which integrates 125 nations committed to punishing atrocity crimes with a permanent tribunal that only intervenes if they fail to act. “Complementarity” is the principle that harmonizes national efforts and the ICC to investigate and prosecute allegations of grave crimes. The common goal defined by the Rome Statute’s Preamble is to end impunity for atrocity crimes and contribute to their prevention.
When the Rome Statute came into force in July 2002, the Bush administration tried to marginalize the ICC project, and in 2010 the Obama administration tried to control it,[1] but the Court, supported by member States and civil society, fulfilled its role respecting its legal boundaries and became an established institution, a new part of the international system. The United Nations Security Council referred the situations in Darfur and Libya to the ICC, the second decision by consensus, and groups of States are requesting the Court’s intervention in Venezuela, Ukraine, and Gaza.
The United States is not a State party of the Rome Statute; it has enormous discretion to decide its policies and it has followed a selective application of international law, supporting cases against enemies and dismissing those against friends. The United States shared evidence with the ICC against adversaries such as Russian President Vladimir Putin, but criticized the Court’s intervention against allies like Netanyahu.
Biden exposed himself by demanding respect for international law but at the same time rejecting its enforcement by the ICC. The message is clear: it is the “rule of the United States” above all.
Even close U.S. allies like the King of Jordan have criticized Biden’s double standard, affirming that the application of international law should not be optional.
Krasner presented the positive aspects of the lack of impartiality and equality in the application of international law by the United States: “Law can matter for realists, but only because it helps to construct a self-enforcing equilibrium through ones that reflect the preferences of the powerful.” President-elect Donald Trump could adopt such an approach.
Without invoking moral or legal reasons Trump can take advantage of the independent Court’s activity to achieve legitimate U.S. interests not just in Gaza, but also in other situations like Azerbaijan in Armenia or Venezuela. U.S. realism in 2025 requires learning how to achieve national interests by taking advantage of the coordination provided by an independent ICC.
Israel’s Challenge to the Court’s Jurisdiction
The ICC Prosecutor and Chamber fairly implemented their mandate. Back in December 2023, speaking from Ramallah during the Assembly of States Parties to the ICC, Chief Prosecutor Karim Kahn put Israel on notice. He said, “humanitarian assistance must be allowed in at pace, at scale in Gaza . . . if Israel doesn’t comply now, they shouldn’t complain later.”
In May 2024, the Prosecutor implemented his announcements and requested the issuance of arrest warrants against Netanyahu, former Israeli Defense Minister Yoav Gallant, and three senior members of Hamas. U.S. Secretary of State Antony Blinken criticized Khan, arguing that the principles of complementarity “do not appear to have been applied here amid the Prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed.”
The Prosecutor’s request for arrest warrants set off a flurry of activity among States and the international community. The Pre-Trial Chamber accepted amici curiae submissions from States, experts, and NGOs.
In August, the United States requested in its written submission that the ICC “preserve the Court’s complementarity framework” and, quoting the Oslo Accords, argued that while Israel transferred certain criminal jurisdiction powers to the Palestinian Authority, any powers of criminal jurisdiction over Israelis was specifically excluded from the transfer (para. 12).
I used a similar argument in April 2012 when, as the ICC Prosecutor, I rejected a Palestinian request to accept the Court’s jurisdiction. In those days, Palestine was not considered a “State” by the United Nations General Assembly, and the Oslo Accords did not authorize it to investigate Israel citizens. That situation changed in November 2012, when the General Assembly, voted to recognize Palestine as a “Non-Member Observe State” with the ability to join international organizations. The General Assembly’s recognition of Palestine as a “State,” not the Oslo Accords, is the source of the Palestinian Authority’s ability to grant the ICC jurisdiction, as a Pre-Trial Chamber of the Court decided in 2021.
ICC States Parties including Germany, Argentina, Hungary, and the Czech Republic agreed with the U.S. position, but neglected to mention that they did not object to the recognition of Palestine as a State during the debates in 2015 at the Assembly of States Parties. Canada was the only country that objected to the incorporation of Palestine in the Credential Committee debate.
Other countries, like Brazil, South Africa, Norway, Chile, Mexico, Ireland, Spain, and Colombia presented arguments in favor of the ICC’s jurisdiction in the case.
In October, Israel presented objections to the Court’s jurisdiction, challenging Palestine’s ability to provide jurisdiction to the ICC, which the Court rejected the following month (para. 18). Still, the Court made clear that the door to complementarity remains open, if Israel is willing to take it.
Israel Could Quickly Have the Case Dismissed Under the Complementarity Principle
Israel could use the ICC’s legal framework to stop the arrest warrants against Netanyahu and Gallant.
The ICC is respecting the principle of complementarity, which states that the Court intervenes only when national authorities fail to act. As soon as there is a genuine investigation conducted by Israeli authorities concerning the same facts and the alleged legal responsibility of Netanyahu and Gallant the case against them before the ICC becomes inadmissible pursuant to Article 17(1)(a) of the Rome Statute. In that scenario, the arrest warrants should be withdrawn. U.S. political pressure on the Court will not produce such an outcome.
Israel has some relevant precedents to draw on in this regard. The ICC declared the case against Libya’s former Director of Military Intelligence, Abdullah Al-Senussi, inadmissible, clarifying the meaning of the “same facts” requisite. On the other hand, the ICC rejected the admissibility challenge in the case of former Libya’s Saif Al-Islam Gaddafi on the basis that Libya was unable to conduct independent and impartial proceedings against him (paras. 216-218).
The Court found the Kenyan cases admissible, considering that the government had failed to substantiate that it was investigating the same individuals for the same crimes alleged by the Prosecutor (paras. 67-69).
Thus far, Israel has not embraced the complementarity approach. There are no Israeli criminal investigations for the same facts against the same individuals.
An article in Just Security quoting Israel media explained that Israeli Attorney General Baharav-Miara has advocated to open an investigation into events occurring in the war through a “state commission of inquiry,” Israel’s highest-level probe. Netanyahu has apparently opposed the process, fearing it could be a legal ploy to remove him from power. He reportedly prefers a commission where members are appointed by the cabinet. Both appear to understand that a national investigation is the only way to remove the arrest warrants and to stop the ICC’s intervention.
After the ICC issued the warrants a U.S. State Department spokesperson insisted that “[w]e remain deeply concerned by the Prosecutor’s rush to seek arrest warrants,” without mentioning that after six months since the Prosecutor first made the request Israel did not move to conduct investigations.
More importantly, the ICC accepted that Israel still has the option to conduct national proceedings. The judges rejected Israel’s jurisdictional challenge as “premature,” assuring that the government “will have the full opportunity to challenge the Court’s jurisdiction and/or admissibility of any particular case.” (Para. 18).
The Prosecutor’s comments emphasized: “In line with the Rome Statute, the door to complementarity continues to remain open.” It “requires genuine domestic investigations and any necessary prosecution of the same individuals for substantially the same conduct,” he added.
What is the conduct under investigation? The ICC charged Netanyahu and Gallant with the war crime of starvation as a method of warfare; and the crimes against humanity related to the same underlying facts. The Chamber found sufficient evidence at this preliminary stage that both men knowingly deprived the civilian population in Gaza of objects indispensable to their survival – including food, water, and medicine and medical supplies, as well as fuel and electricity.
Biden could be a witness for the Prosecution. He tried to mitigate the starvation of civilians by establishing a provisional port and delivering aerial assistance. Even more, before the U.S. presidential election, the Biden administration threated to cut weapons funding to Israel unless the Netanyahu government allowed appropriate levels of humanitarian aid to enter Gaza within thirty days. When that deadline passed after the election, a State Department spokesperson admitted that “we would like to see some more changes happen.”
It is very clear that the responsibility of those who allegedly planned these assaults on the Gaza civilian population should be investigated. All the legal debates about the crimes committed, and the Court’s jurisdiction will be transferred to Israeli authorities as soon the Israel investigation is genuine. The ball is in Israel’s court.
The Rule of Law Versus the “Rule of U.S.”
Biden has demanded that Israel should respect international law. Blinken went further, saying it is “our respect for international law and the laws of war” that “separates Israel and the United States and other democracies” from “Hamas and terrorist groups that engage in the most heinous kinds of activities.”
Instead of taking advantage of the arrest warrant issued by the Court to increase his influence and at least stop the starvation, Biden opposed the ICC’s intervention in the Palestine situation.
President-elect Trump could do better than Biden on this problem; he will not pretend or portray the United States as a beacon of humanitarian values, nor will he respect international law or the ICC. But he could take another, more “realist” approach: to leverage the Court’s intervention for his own strategic advantage without supporting it.
In 2019, the Trump administration designated (or sanctioned) then-ICC Prosecutor Fatou Bensouda for her investigation into U.S. personnel involved in alleged torture in Afghanistan. Trump may take a similar stance in the Gaza situation during his second term, but I would like to present him and his team with an alternative.
“America First” suggests that the protection of Israel should not affect the U.S. standing in the world and other Trump agendas, including stopping wars, controlling the group that took control of Syria, putting pressure to stop the conflict between Armenia and Azerbaijan, a peace agreement that could be signed in a few weeks.
The Congress is threatening to sanction close U.S. allies like Canada, the United Kingdom, Australia, and New Zealand if they fulfill their obligations as parties to the ICC. Will Trump be ready to enforce such sanctions? Why would Trump spend his political capital at the beginning of his second term on the ICC when he could help compel Israel to solve the problem itself through national prosecutions?
In fact, the arrest warrant provides Trump with influence over Netanyahu. A Prime Minister facing prosecutions needs protection. And the ICC also provides Trump with an upper hand on other members of the Israel government, including those with extremist views like Minister of National Security Itamar Ben Gvir, that could destabilize any post conflict solution. The Prosecutor has said that he is investigating crimes committed in Ramallah, and a new case by the ICC would be free of costs and responsibilities for Trump.
The ICC could give leverage to Trump in other separate negotiations without any cost, including proposing at the Security Council to refer the Syria or North Korea situations to the ICC. To facilitate a negotiation with Putin, the United States and Russia could vote together at the Security Council for a suspension of the ICC cases in Ukraine in accordance with Article 16 of the Rome Statute.
Furthermore, Senator Marco Rubio (R-FL), Trump’s nominee for secretary of state, is a consistent critic of Venezuelan President Nicolas Maduro. Venezuela is a State party to the Rome Statute, and the ICC is an institution that could be used to help control Maduro’s regime of political repression without a military intervention. The United States could support the implementation of ICC arrest warrants against Maduro or his top generals without infringing on Venezuela’s sovereignty, thus helping bring about the end of the regime.
Trump, different than Biden, could reduce suffering for millions in Gaza and help to change the course of history for nations without invading them.
Beyond the legal debates and policy discussions, the absolute priority should be to prevent the starvation of two million people in Gaza dying in front of us all.
[1] A U.S. government official whom I have known for decades came to The Hague and asked me to close the preliminary examination requested by the Palestinian Authority immediately. See Luis Moreno Ocampo, War and Justice in the 21st Century: A Case Study on the International Criminal Court and its Interaction with the War on Terror (p. 288). Oxford University Press. Kindle Edition.