Could Trump’s victory spur ICC to quickly issue arrest warrant against Netanyahu?
Returning US president took harsh measures against The Hague court in 2020; Biden reversed them, while also declining to sanction prosecutor over effort to target Israeli leaders
Lazar Berman is The Times of Israel's diplomatic reporter
Donald Trump’s electoral victory this week raises a number of questions for Israeli leaders about the effect it will have on ongoing wars in Gaza, Lebanon and beyond.
But it also brings up a more immediate issue. Will the return of Trump — a bitter critic of the International Criminal Court — spur The Hague-based court to hurry to issue arrest warrants against Israeli leaders before the Republican is back in the White House in January?
In May, ICC chief prosecutor Karim Khan announced that he would seek arrest warrants against Netanyahu, his since-fired defense minister Yoav Gallant and three Hamas leaders — all of whom have since been killed — on war crimes charges.
Khan accused Netanyahu and Gallant of targeting civilians in Gaza and using starvation as a weapon of war — charges Israel rejects. He accused the Hamas leaders of crimes against humanity during the war and the assault that sparked it on October 7, 2023, when Hamas-led terrorists stormed southern Israel to kill nearly 1,200 people and take 251 hostages.
The Biden administration blasted Khan’s decision and said it would work with Congress to advance a “bipartisan response” but stopped short of backing sanctions against the ICC.
In June, the Republican-majority US House of Representatives passed a bipartisan bill to sanction the court, threatening to apply sweeping economic sanctions and visa restrictions to individuals and judges associated with the ICC, including their family members.
However, the Democrat-controlled Senate did not advance the bill, after the White House said it opposed sanctions on the ICC.
Neither the US nor Israel are members of the ICC.
Trump, on the other hand, is very likely to take harsh measures against the court if it goes after either country, with the GOP retaking the Senate and appearing to maintain its House majority in this week’s election.
In 2020, Trump authorized economic sanctions and travel restrictions against ICC court workers directly involved in investigating American troops and intelligence officials for possible war crimes in Afghanistan.
The executive order empowered the secretary of state, in consultation with the treasury secretary, to block financial assets within US jurisdiction of court personnel who directly engage in investigating, harassing or detaining US personnel. The order also authorized the secretary of state to block court officials and their family members involved in the investigations from entering the United States.
Then-secretary of state Mike Pompeo in parallel warned the ICC against looking into Palestinian claims of war crimes by Israel in the West Bank, saying the United States would “exact consequences” for any “illegitimate” investigations.
However, Trump’s sanctions were lifted by the Biden administration the following year.
The court now has until January 20 to issue the warrants while Biden is still in office.
Were the ICC to do so, that would not mean it would get off unscathed, however. Trump could still renew sanctions on the court, and looks to have control of both houses of Congress if he wants to pass laws that will be harder to rescind in the future.
Khan also faces other challenges. A female ICC employee accused Khan of trying for more than a year to coerce her into a sexual relationship and groping her against her will. He’s categorically denied the allegations, saying there was “no truth to suggestions of misconduct.”
Court officials have suggested they may have been made as part of an Israeli intelligence smear campaign. However, others have suggested that the high-profile charges against Israeli leaders — brought after the sexual misconduct probe began — were meant to distract from Khan’s misconduct.
Israel’s allies in the US Congress have also seized on the would-be scandal.
US senators send warning letter
A group of senators from both sides of the aisle is putting pressure on Khan not to issue the warrants, sending a letter to the ICC last week that directly links their request to the sexual harassment allegations. The letter urged the court to complete its investigation into the ICC prosecutor before deciding on the arrest warrants.
The November 1 letter was signed by Senate Foreign Relations Committee Chairman Ben Cardin, along with senators Lindsey Graham, Joni Ernst, Richard Blumenthal, John Thune and John Fetterman.
The ICC confirmed receiving the letter but declined to comment.
In addition, under curious circumstances, a new judge recently joined the panel considering Khan’s request. Romanian judge Iulia Motoc asked to be replaced for medical reasons, though she continued to issue extensive rulings on other cases.
She was replaced by Slovenian Beti Hohler, who has to catch up on reams of evidence before coming to a ruling.
Ultimately, there’s no guarantee that the court will decide to issue the warrants at all. It could accept Israel’s case that it should at least be given time to investigate any allegations through its own judicial system.
But if the ICC does decide to move forward, it has a short window in which to do so before it finds itself dealing with a US president and party that has gone after it in the past and is likely to do so again.
