As a dual American-Israeli citizen whose family was decimated in the Holocaust, I am intensely focused on the fate of the Jewish people and the safety of all Israelis. My family lost 80 relatives in Auschwitz at the hands of the Nazis. I was reminded of this history during last year’s family visit to the Jewish Museum in Thessaloniki, Greece. There, my cousin, the museum’s founder, explained that the Auschwitz prison uniform in a glass case worn by “Prisoner 118745” belonged to the only Greek member of our family to survive Auschwitz – her father. Like other Jews whose family history is indelibly marked by antisemitism and genocide, I was profoundly troubled by arrest warrants requested by the International Criminal Court (ICC) against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. To see two leaders of Israel, the country of my birth, accused of committing war crimes and crimes against humanity was shocking.
I understand the impulse to lash out at the ICC and its Chief Prosecutor Karim Khan for their actions against Netanyahu and Gallant. Many have focused on the perceived lack of moral equivalence between their conduct and that of three Hamas leaders behind the October 7th massacre, whose arrest warrants Khan also requested. But moral equivalence is irrelevant to the mandate of the ICC, which is charged with investigating credible claims that war crimes and crimes against humanity have been committed. It is my family history and three decades spent advocating for human rights and the rule of law that compel me to defend the ICC’s decision to pursue justice in connection with alleged crimes arising from the Israel-Hamas war.
I have documented ongoing crimes against humanity in North Korea’s concentration camps, and helped Congolese officials prosecute war criminals, including combatants who used rape as a weapon of war. I believe laws matter, perhaps never more than during wartime. Those involved in conducting the Israel-Hamas war cannot be exempted from the universal laws of war and human rights. That is why I was deeply troubled by the reactions of American leaders, including President Joe Biden and Congressional leaders, to Khan’s request for arrest warrants against Netanyahu and Gallant, with Biden summarily labeling the arrest warrants “outrageous.” Before the warrants were even requested, U.S. Senator Lindsay Graham (R-SC) and 11 fellow senators threatened retaliation: “Target Israel and we will target you. If you move forward … we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned.”
This response was in sharp contrast to last year’s outpouring of bipartisan support for the ICC’s decision, also at the request of Khan, to issue an arrest warrant against Russian President Vladimir Putin for alleged war crimes in Ukraine. Biden responded by ordering the U.S. government to share evidence of Putin’s alleged crimes with the ICC. Graham extolled the ICC’s move as “a giant step in the right direction for the international community” and opined that failing to charge Putin “would irrevocably damage the Rule of Law-based world order established at the end World War II.” This muscular defense of the ICC was laudable and important, especially given that Russia initiated criminal proceedings against Khan and several ICC judges in retaliation for Putin’s indictment.
Respect for the rule of law is humanity’s best hope for an orderly, peaceful world. Staying true to the rule of law requires commitment to bedrock principles, such as respect for judicial and prosecutorial independence and the integrity of legal proceedings. These principles oblige us to accept that Khan may possess credible evidence that crimes have been committed by both sides in the Israel-Hamas war. We must also have faith that ICC pre-trial judges charged with reviewing this evidence will reject the requests for arrest warrants if the evidence proves insufficient.
Instead of respecting the rule of law, the U.S. House of Representatives took a page from the Kremlin playbook, passing legislation on a mostly partisan basis to sanction the ICC for requesting arrest warrants against Netanyahu and Gallant. Senate Majority Leader Chuck Schumer (D-NY), an ardent defender of Israel and the highest-ranking Jewish official in U.S. history, has so far wisely opposed the House’s dangerous impulse. Schumer, Senator Ben Cardin (D-MD), and other long-time supporters of Israel should resist striking a bipartisan deal punishing the ICC for its investigative actions. A contrary result would elevate politics over the rule of law.
I have met Khan, a former UK prosecutor who previously led a United Nations team investigating crimes committed by ISIL in Iraq. Like my peers, I am confident this eminently qualified prosecutor will carry out his duties with honor and integrity, and that ICC judges will render their decisions impartially.
Finally, it is worth remembering that Israeli prosecutors and the Israeli court system saw fit to charge Netanyahu with a raft of bribery, fraud, and breach of trust charges that may land him in an Israeli prison for several years. The Israeli justice system brought these charges only after following proper procedures. So, too, is the ICC Prosecutor following proper procedures with respect to his arrest warrant applications against Netanyahu and Gallant. We have seen nothing to suggest Khan has any bias whatsoever against Israel. In fact, the arrest warrant applications against three Hamas leaders are strong evidence he is guided by the facts and nothing more. Following the facts is what a fair-minded, even-handed prosecutor is supposed to do.
Congress should resist sanctioning the ICC for simply doing its job.