The recent decision by the International Criminal Court to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yaov Gallant represents a serious threat to the sovereignty of nations that endangers the freedom of U.S. citizens, especially members of the armed forces and former American officials.
The Netanyahu and Gallant ICC indictments might not have occurred if it had not been for the Obama and Biden administrations' efforts to legitimize the court after years of efforts by the United States to discredit it. The Trump administration should act quickly to reverse this disturbing trend by abolishing, delegitimizing and punishing the ICC.
The treaty that created the ICC — the Rome Statute of the International Criminal Court — was signed by the United States during the Clinton Administration in 2000. However, President Clinton never submitted this treaty for Senate ratification because of bipartisan opposition by many senators who believed the court posed a threat to U.S. national security and the constitutional rights of American citizens.
According to University of California-Berkeley law professor John Yoo, the ICC “represents another effort by a global elite — consisting of European governments, international organizations, and their supporting interest groups, academics, and activists — to threaten American sovereignty.”
David Rivkin and Lee Casey, both attorneys and former Bush administration Justice Department officials, warned about the creation of the ICC because…
"The creation of a permanent, supranational court with the independent power to judge and punish elected officials for their official actions represents a decisive break with fundamental American ideals of self-government and popular sovereignty. It would constitute the transfer of the ultimate authority to judge the acts of U.S. officials away from the American people to an unelected and unaccountable international bureaucracy. As Alexis de Tocqueville wrote in his Democracy in America, '[h]e who punishes the criminal is ... the real master of society.'"
To shield Americans from arrest by the ICC when they are abroad, the George W. Bush administration negotiated bilateral agreements with over 100 countries to not turn over U.S. citizens to the ICC.
In 2002, Congress passed the American Service Members’ Protection Act that codified protections for U.S. persons and allies from ICC jurisdiction and restricted U.S. involvement with the court. This law was nicknamed the “The Hague Invasion Act” because it also authorized the use of U.S. military force to liberate any American or citizen of a U.S.-allied country held by the court. This law also prohibited U.S. military assistance to countries that are parties to the ICC and did not have agreements to not turn over American citizens to the court.
In June 2020, the Trump administration sanctioned ICC officials for their investigations into potential war crimes in Afghanistan by U.S. military and intelligence officials and human rights abuses by Israeli authorities against Palestinians. The Biden administration lifted these sanctions in April 2021.
Despite action by Congress and prior administrations to protect Americans from the ICC, the Obama and Biden administrations have acted as if the U.S. accepts the Rome Statute and made quiet moves to make the United States an ICC party.
In 2010, the Obama administration sent a delegate to a meeting of the ICC’s governing body, the Assembly of States Parties, as an observer state. In 2011, the Obama administration voted in the U.N. Security Council to refer the situation in Libya to the court. Obama officials also supported transferring Congolese rebel leaders to the ICC in 2012 and 2015.
In 2023, President Biden called an ICC indictment of Russian President Vladimir Putin “justified.” In 2023, Biden ordered his administration to cooperate with an ICC investigation of Russian war crimes in Ukraine. The Biden administration also offered lukewarm objections earlier this year to reports that the ICC was planning to indict Netanyahu.
These moves by the Obama and Biden administrations helped legitimize the ICC and encouraged it to indict and issue arrests warrant for Netanyahu and Gallant. Rabbi Abraham Cooper, associate dean for the Simon Wiesenthal Center, warned that the arrest warrants against Netanyahu and Gallant marked a dangerous new development under which the court was moving from an era of ineffective political buffoonery to grandstanding on behalf of terrorists and some of the world’s worst criminals.
Republican and Democratic members of Congress have strongly condemned the recent ICC move to arrest Netanyahu and Gallant. In response to the arrest warrants, Sen. Lindsey Graham, R-S.C., called the court a “rogue and politically motivated organization” and pledged to introduce legislation to impose sanctions on any U.S. ally that enforces the warrants against Netanyahu and Gallant.
Sen. Tom Cotton, R-Ark., reacted similarly, stating, “Woe to him and anyone who tries to enforce these outlaw warrants. Let me give them all a friendly reminder: The American law on the ICC is known as The Hague Invasion Act for a reason.”
In response to the Netanyahu and Gallant arrest warrants, President Trump’s National Security Adviser-designee Michael Waltz said on X that the ICC “has no credibility” and “you can expect a strong response to the antisemitic bias of the ICC and UN come January.”
According to press reports, President Trump is considering sanctions against ICC Chief Prosecutor Karim Khan and the judges who issued the warrants against Netanyahu and Gallant.
The responses reportedly planned by the Trump administration in response to the Netanyahu and Gallant ICC arrest warrants are the right approach to reverse the foolhardy attempts by the Obama and Biden administrations to legitimize this dangerous international tribunal.
These steps should build on Sen. Graham’s proposed legislation to convince ICC member states to withdraw from the ICC treaty and stop paying their ICC dues. The U.S. also should declare that ICC personnel will face U.S. criminal penalties for kidnapping if an American citizen is ever arrested in response to an ICC warrant.
The International Criminal Court is an out-of-control international tribunal that represents a serious threat to American sovereignty and the freedom of U.S. citizens and the citizens of our allies. I am confident that combatting the ICC will be a high priority for the Trump administration’s America First national security policy.
Fred Fleitz previously served as National Security Council chief of staff, CIA analyst, and a House Intelligence Committee staff member. Read more of his reports — Click Here Now.
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