Once more, the International Criminal Court’s arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant on charges of war acts in Gaza demonstrate the irony of that organization. The ICC is hampered by the warrants, which further complicated the chances of serenity in Gaza. But they also allow President-elect Donald Trump to reach a blow for British national independence.
The ICC has ordered the arrest of Netanyahu and Gallant for allegedly violating the laws of war by carrying out a “plan to employ hunger as a method of war and other acts of violence against the Gazan human people,” in the ICC attorney’s words.
The ICC has finally achieved what the battle was not: complete partnership between Netanyahu and the Biden administration, which immediately denounced the ICC’s choice. So did Rep. Michael Waltz, R-Fla., whom President-elect Trump has designated as his national security adviser. The ICC also created an obstacle to peace negotiations: Netanyahu declared that Israel will now seek” total victory” in Gaza.
The ICC is a product of gauzy, utopian 1990s thinking. National sovereignty was fading before the unresistible forces of multilateralism and globalization, according to the then-conventional wisdom. A supranational institution would need to have a judge, jury, and executioner all tucked into one because nations couldn’t be trusted to enforce the laws of war against themselves. The United States did not ratify the Rome Statute, which was the creation of the ICC, and is not a member of it. The world’s other leading military powers — China, Russia, India, and Israel — also refused to join.  ,
True, some 124 states are parties to the treaty, including many of our Western European allies. When a wanted suspect enters a country through the ICC, states are required to execute the court’s arrest warrants. The Canadian government would be required by law to arrest Netanyahu if he visits a state party like, let’s say, Canada. But several state parties, including Germany, France, Argentina, and Hungary, have already said or implied they would not arrest Netanyahu should he visit them. The United States should work with Israel to mobilize support for the arrest warrants issued by other ICC members.
Similar ICC mandates have sunk into the international context. In March 2023, the ICC issued an arrest warrant for Russian President Vladimir Putin for war crimes committed during Russia’s invasion of Ukraine. Since then, Yet Putin has traveled outside Russia to countries like China and Saudi Arabia, which are not members of the ICC, the United Arab Emirates ( which has signed but not ratified the treaty ), and Mongolia, which is a member of the ICC.
Earlier, in 2009 and 2010, the ICC issued warrants for another head of state, Omar Hassan al-Bashir of Sudan. South Africa ( an ICC signatory ) did not arrest al-Bashir when he visited that country in 2015 to attend an African Union summit.  ,
For most of its existence, the ICC concentrated on easy targets — mostly weak African nations. When that caused blowback, it sought bigger game, such as Russia, the U. S., and now Israel. But whichever route it takes, the institution is fatally flawed conceptually.  ,
Countries have defined and upheld the laws of their own countries for countless years. From the beginning of the antiquity to World War II, they have been steadily working to reinforce the idea that nations should seek to spare civilians ( or a few of them ) from the horrors of war. By retaliating against nations that lacked the respect that was practiced in war, they imposed this standard.  ,
The Rome Statute replaced this nation-based system with an impractical, and even dangerous, utopian vision. It assumed that unelected international officials, assisted by groups of self-appointed experts and human rights activists, not nations, would define war crimes. Without any police or armed forces at their disposal, it declared that a fantastic band of international judges and prosecutors would oversee the proceedings.  ,
There are no juries, no true separation of judges and prosecutors, and no control over elected officials, which all violate fundamental principles of due process. Countries under the ICC’s rule may not want to make the tough choices to wage war, especially against the terrorist organizations that the United States and Israel have encountered in al Qaeda, Hamas, and Hezbollah, as well as against China and Russia, which are our current adversaries. Even as challenges to our postwar security arise, Western nations would be forced to do so.
In fact, some EU nations will swear to carry out the ICC warrants, risking both their elected leaders and their own national sovereignty. Several EU states sell arms to Israel, Germany alone supplies about one-third of Israel’s arms. Countries that send weapons to Israel can be regarded as complicities in its alleged crimes, according to a UN report released in May by a group of international law experts. Therefore, if Germany continued to use the ICC warrants against Israel, it would set up its own government leaders as targets for ICC prosecution.  ,
Moreover, the United States, which supplies most of Israel’s foreign-bought weaponry, would also be in the ICC prosecutor’s crosshairs. A jurisdictional rule in the Rome Statute purports to authorize a prosecution against a nonparty state that allegedly commits war crimes on the soil of a party, despite the fact that the United States is not a party to the ICC. Because the ICC considers” Palestine” a state, and because Israel uses U. S. arms in Gaza — deemed to be part of” Palestine”— U. S. leaders like President Biden could also face ICC warrants.
In summary, the ICC’s actions put the leaders of several nations, including our own, in grave danger and undermine the principle of national sovereignty. Can an unelected prosecutor really wreak havoc on elected governments in the West?
What is available to the incoming Trump administration? It could impose severe sanctions on the ICC judges and its prosecutor, Karim Ahmad Khan, who engineered this debacle, by blocking their ability to transact business through our banking system, for example. Any nation that detained Netanyahu or Gallant in accordance with the ICC warrants could face severe sanctions from the ICC. By arranging for the Israeli premier to visit the White House and Congress, it might also show its contempt for the ICC.  ,
Additionally, the Trump administration should act against countries that provide funding and financial support to the ICC. Some of the ICC’s largest financial benefactors, including Japan and the European Union nations, are also dependent on the United States for their security. Yet while asking Washington, D. C., to protect them, they finance a global institution that hamstrings our ability to do so. Trump can demand that Japan renounce its subsidies for an international organization that seeks to undermine the American national sovereignty he was elected to restore, for instance, if Tokyo wants the United States to be in charge of a new alliance to contain China.
Americans voted for Trump to restore national sovereignty, especially by securing the border and controlling immigration. Trump can show his support for our sovereignty by attacking an institution that directly threatens it: the ICC.
John Yoo is a distinguished visiting professor at the American Enterprise Institute, Senior Research Fellow at the Civitas Institute, Senior Research Fellow at the University of Texas at Austin, and Heller Professor of Law at the University of California at Berkeley. Robert Delahunty is a Fellow of the Claremont Institute’s Center for the American Way of Life in Washington, D. C.
