As Israel's leaders — up to and potentially including Prime Minister Benjamin Netanyahu — face the threat of arrest warrants from the International Criminal Court (ICC), the White House is again failing to rise to the occasion to defend America's greatest ally in the Middle East.
Earlier this week, White House Press Secretary Karine Jean-Pierre offered a terse "we do not support it" when asked about a potential ICC case against Israel for what has, in reality, been a master class in how to prosecute a war against barbaric terrorists who intentionally hide their members, weapons, and command structure inside civilian infrastructure.
Jean-Pierre added that the Biden administration believes the ICC — which handles cases of genocide, crimes against humanity, and war crimes — does not have "the jurisdiction" to bring such a case against Israel. Neither the United States nor Israel are acceding parties to the ICC's founding treaty, the Rome Statute, and the Jewish state is not likely to hand senior members of its government over to be prosecuted on bogus accusations. Still, arrest warrants from the ICC would only embolden the vicious anti-Israel propaganda being pushed by the pro-terrorist crowd.
President Biden, his administration, and his communications team should be forcefully condemning the ICC's potential case against Israel and explaining why specifically the court lacks jurisdiction to be used as another bludgeon against the Jewish State as it fights for survival against Iran and its proxies — the actual genocidal, war crime-committing terrorists.
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What Team Biden has shown itself unwilling to do — likely due to the president's gross campaign to secure the votes of Rashida Tlaib's fan club by ensuring he's not seen as too supportive of our ally Israel — is note the simple but definitive principle of complementarity at the heart of the ICC's function.
As the ICC notes, that principle means the court "is intended to complement, not to replace, national criminal systems; it prosecutes cases only when States do not, are unwilling, or unable to do so genuinely." That is, it exists to prosecute crimes where there is not a robust judicial system to ensure accountability.
For example, the United States has civil and criminal law as well as the Uniform Code of Military Justice and JAG Corps to ensure the code is enforced and defended. The ICC, according to complementarity, can't issue arrest warrants for Americans or bring a case against the U.S. because there is already a system in place for crimes to be prosecuted and claims adjudicated to ensure accountability.
Israel also has a military justice system with the Military Advocate General's (MAG) Corps and other bodies tasked with ensuring the IDF upholds the rule of law, has proper guidance regarding international law, and is acting in line with both applicable law and the IDF's code of conduct — considered one of the strictest in the world.
According to the ICC, it "only prosecutes cases" when states lack or don't seriously enforce laws and ensure accountability. Israel does have a military justice system, is willing to use it, and does so "genuinely." Therefore, the entire case is an affront to and in violation of the ICC's standards.
President Biden should say that publicly and explain it as best he can. The administration should emphasize this. If the ICC ever wants to be taken seriously as an arbiter of international justice and not merely another international farce used by anti-Israel radicals to justify their pro-terrorist positions, it needs to follow — at a laughable bare minimum — the governing standards laid out in the preamble and Article I of its charter.
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