ICC’s move against Benjamin Netanyahu puts Joe Biden in diplomatic and political bind

The International Criminal Court’s announcement that it was seeking arrest warrants for Israel’s leaders just hours after US national security adviser Jake Sullivan held meetings with officials in Jerusalem has left American politicians across the political divide fuming.

President Joe Biden and Republican House Speaker Mike Johnson condemned ICC prosecutor Karim Khan’s statement that he was seeking warrants over alleged war crimes for Benjamin Netanyahu and leaders of Hamas.

Biden said it was “outrageous” to equate the conduct of Netanyahu, Israel’s prime minister, and defence minister Yoav Gallant with that of Hamas leaders.

“Let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security,” he said.

But the move by the ICC leaves the Biden administration with a domestic and diplomatic challenge.

The president’s passionate defence of Israel and Netanyahu threatens to exacerbate divisions over the war in Gaza within his Democratic party as it gears up for a tough election battle.

Meanwhile, any retaliation against the ICC could undermine US efforts to position itself as a broker in negotiations to end the conflict and further erode its standing among many countries in the so-called global south.

Earlier this month Biden, showed signs of distancing himself from the Israeli prime minister over his government’s plans to launch an offensive in the southern Gazan city of Rafah — where as many as 1mn Palestinians had sought sanctuary — by announcing that the US was withholding a shipment of bombs if an invasion took place.

Netanyahu went ahead and launched an offensive on eastern Rafah anyway, forcing hundreds of thousands to move again in an operation that the US says is limited in scope.

The US state department also issued a report to Congress saying Israel might have used US-made weapons in ways that violate international humanitarian law, although stopped short of making a formal accusation.

In a sign of the left’s opposition to Biden’s stance on the conflict triggered by Hamas’s October 7 attack, progressive senator Bernie Sanders and Minnesota Democratic congresswoman Ilhan Omar on Monday praised the decision by the ICC prosecutor.

Netanyahu “has waged an unprecedented war of destruction against the entire Palestinian people, which has killed or injured over 5 per cent of the population”, said Sanders.

“The ICC prosecutor is right to take these actions. These arrest warrants may or may not be carried out, but it is imperative that the global community uphold international law,” he added.

Meanwhile, more centrist Democrats, such as Senate majority leader Chuck Schumer, called the move by the ICC “profoundly unfair” and “reprehensible”.

Just over two months ago, Schumer excoriated Netanyahu in a speech to the Senate, saying the Israeli leader’s conduct in the war was weakening his country’s “political and moral fabric” and that he was an “obstacle to peace”.

The US has long had a tortured relationship with the ICC. It is not a member of the court and has historically sought to distance itself due to fears that it could be subject to investigations over its conduct in conflicts such as in Iraq and Afghanistan.

But Washington supported the ICC’s investigation into Russian President Vladimir Putin after his 2022 full-scale invasion of Ukraine, leaving it in an awkward position.

Until the request for the arrest warrants was announced on Monday, the US had been cautious in its comments about the ICC’s investigation into the Israel-Hamas war, saying only that the court did not have jurisdiction in the case.

Now, the administration’s position has hardened. Secretary of state Antony Blinken issued a lengthy statement condemning the ICC’s move, saying it could harm US efforts to end the war.

“This decision does nothing to help, and could jeopardise ongoing efforts to reach a ceasefire agreement that would get hostages out and surge humanitarian assistance in, which are the goals the United States continues to pursue relentlessly,” Blinken said.

But the US must “tread very carefully” on the ICC, cautioned David Scheffer, who was US ambassador at large for war crimes during the Clinton administration and is now a senior fellow at the Council on Foreign Relations think-tank.

He said a retaliatory response from Washington before the judges of the pre-trial chamber have had a chance to review the application could backfire, leaving the US open to allegations of double standards.

“​​We are strongly encouraging investigations and indictments with respect to the Russian aggression against Ukraine and the atrocity crimes resulting from that, and then we turn around and we try to make a very different case with respect to Israel and Gaza. That simply is not going to be helpful with respect to our influence on the overall situation in the Middle East,” he said.

Republicans agreed with Biden’s comments that the behaviour of Hamas leaders should not be equated with that of Israeli officials, but used the ICC announcement as an opportunity to slam the president over his criticism of Netanyahu’s prosecution of the war.

“It’s clear the ICC’s decision has been advanced due to the Biden administration’s pressure campaign against Israel and its outlandish State Department investigations,” said Johnson.

“In the absence of leadership from the White House, Congress is reviewing all options, including sanctions, to punish the ICC and ensure its leadership faces consequences if they proceed.”