ICC prosecutor threatens US senators
In plain language, the court's prosecutor is arguing that he and it are above criticism. Forget freedom of speech or national sovereignty.
By Elliott Abrams
JNS
May 29, 2024
Karim Khan, chief prosecutor of the International Criminal Court
Many critics thought the International Criminal Court had gone too far when its prosecutor asked for arrest warrants against Israel’s Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.
But as the saying goes, “You ain’t seen nothin’ yet.”
Now, the prosecutor’s office has threatened to prosecute criticism of…himself. Those who seek to defend Israel and stop the malicious, deeply antisemitic action against its leaders and against the Jewish state are now being told that their words and actions may also be a crime.
This may sound like something out of “Alice in Wonderland,” but it is an effort not only to limit freedom of speech, but to limit the constitutional powers of the U.S. Congress.
After the prosecutor called for the arrest warrants for top Israeli officials, 12 U.S. senators wrote to the ICC. The full text of the letter is below. The final paragraphs read:
“If you issue a warrant for the arrest of the Israeli leadership, we will interpret this not only as a threat to Israel’s sovereignty but to the sovereignty of the United States.
“The United States will not tolerate politicized attacks by the ICC on our allies. Target Israel and we will target you. If you move forward with the measures indicated in the report, 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.”
The reaction of the prosecutor’s office came in a tweet, the key language of which is this:
“When individuals threaten to retaliate against the Court or Court personnel…such threats, even when not acted upon, may also constitute an offence against the administration of justice under Art. 70 of the Rome Statute.”
Wow.
The 12 senators are already criminals, according to the ICC prosecutor, for writing their letter—even if absolutely nothing else happens. Note that the prosecutor writes of “individuals” who may threaten the ICC, whereas the senators write as U.S. government officials about possible official U.S. government actions. In plain language, the prosecutor is arguing that he and the ICC are above criticism. Forget freedom of speech or national sovereignty. To say that the United States, which is not a party to the Rome Statute, might react to punish the ICC for illegal and immoral actions it and its employees may take is not permitted.
Suppose for a moment that Congress passes the new legislation the 12 senators threatened, along the lines of the ASPA—the American Servicemembers Protection Act. That was 2002 legislation to protect U.S. military and other personnel from prosecution by the ICC. ASPA gave the president power to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” ASPA has been colloquially known as “The Hague Invasion Act.”
Voting for such legislation even if it does not pass would clearly, in the view of the ICC prosecutor, be a crime—a form of retaliation and threat prohibited to every inhabitant of Earth by the Rome Statute. So much for the Constitution, for national sovereignty, for self-government, for freedom of speech. The ICC apparently stands above all of that—even for citizens and governmental bodies in countries, such as the United States, that have not signed the Rome Statute and thereby agreed to be subject to the ICC.
This attempted power grab is breathtaking, and should be summarily rejected by citizens and governments around the world. For the United States, this effort to criminalize Senate action and even a call for Senate action should have been met with immediate rejection by Attorney General Garland and President Joe Biden. Silence in this case can be interpreted as consent, and much more is required.
As that term “The Hague Invasion Act” suggests, no one knows how far the ICC is prepared to go—or how far Americans are prepared to go to defend ourselves. What would happen if the lawless prosecutor, Karim Khan, followed his call for arrest warrants against Netanyahu and Gallant with an effort to indict the 12 senators? Would Garland and Biden then react? Would U.S. House Majority Leader Chuck Schumer? What if the senators traveled to a country that has joined the Rome Statute? Would they be jailed and sent to The Hague?
One assumes that the judges of the ICC are not crazy enough to go down this road, even if Khan is. But then, it was widely assumed that the ICC would not move against a democracy such as Israel—and who would have predicted that the prosecutor would threaten U.S. senators for “threatening” to pass legislation he does not like?
Letter to ICC Prosecutor from 12 U.S. senators:
Mr. Karim A. A. Khan KC
Office of the Prosecutor International Criminal Court
Oude Waalsdorperweg 10 The Hague, The Netherlands
Dear Mr. Khan,
We write regarding the reports that the International Criminal Court (ICC) may be considering issuing international arrest warrants against Prime Minister Benjamin Netanyahu and other Israeli officials. Such actions are illegitimate and lack legal basis, and if carried out will result in severe sanctions against you and your institution.
The ICC is attempting to punish Israel for taking legitimate actions of self-defense against their Iranian-backed aggressors. In fact, in your own words, you witnessed “scenes of calculated cruelty” conducted by Hamas in Israel following the October 7 attacks. These arrest warrants would align the ICC with the largest state sponsor of terrorism and its proxy. To be clear, there is no moral equivalence between Hamas’s terrorism and Israel’s justified response.
The ICC is also prohibited by its charter from proceeding in any case unless the relevant government is unwilling or unable to police themselves. You yourself have said that “Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law.” By issuing warrants, you would be calling into question the legitimacy of Israel’s laws, legal system, and democratic form of government.
Issuing arrest warrants for the leaders of Israel would not only be unjustified, it would expose your organization’s hypocrisy and double standards. Your office has not issued arrest warrants for Iran’s Supreme Leader Ayatollah Ali Khamenei or any other Iranian official, Syrian President Bashar al Assad or any other Syrian official, or Hamas leader Ismail Haniyeh or any other Hamas official. Nor have you issued an arrest warrant for the genocidal General Secretary of the People’s Republic of China, Xi Jinping, or any other Chinese official.
Finally, neither Israel nor the United States are members of the ICC and are therefore outside of your organization’s supposed jurisdiction. If you issue a warrant for the arrest of the Israeli leadership, we will interpret this not only as a threat to Israel’s sovereignty but to the sovereignty of the United States. Our country demonstrated in the American Service-Members’ Protection Act the lengths to which we will go to protect that sovereignty.
The United States will not tolerate politicized attacks by the ICC on our allies. Target Israel and we will target you. If you move forward with the measures indicated in the report, 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.
/s/
Tom Cotton
Mitch McConnell
Marsha Blackburn
Katie Boyd Britt
Ted Budd
Kevin Cramer
Ted Cruz
Bill Hagerty
Pete Ricketts
Marco Rubio
Rick Scott
Tim Scott
Originally published by The Gatestone Institute.
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