Joe Biden Faces Another Headache Over ICC's Netanyahu Move

President Joe Biden faces yet another political headache over the effort by the International Criminal Court's chief prosecutor to seek arrest warrants for Israeli officials in connection with the war in Gaza.

On Monday, chief prosecutor Karim Khan said he had reasonable grounds to believe Israeli Prime Minister Benjamin Netanyahu, Israel's Defense Minister Yoav Gallant and three Hamas leaders "bear criminal responsibility" for alleged war crimes and crimes against humanity in the Gaza Strip and Israel.

Biden, a Democrat, and his opponents denounced Khan's announcement, arguing that the court does not have jurisdiction over the Gaza war. Neither the United States nor Israel is party to the Rome Statute, which established the ICC.

"Whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas," Biden said in a statement on Monday. "We will always stand with Israel against threats to its security," he added.

However, Biden's opposition to an invasion of the southern Gaza city of Rafah and decision to halt a shipment of weapons to Israel has strained the U.S.'s relationship with its ally in recent weeks.

On Tuesday, U.S. Secretary of State Antony Blinken said the administration would be willing to work with Congress to potentially impose sanctions against ICC officials over its application for arrest warrants.

But while some Democrats have joined Biden in condemning the ICC's move, others have welcomed it.

"These arrest warrants may or may not be carried out, but it is imperative that the global community uphold international law," Vermont Senator Bernie Sanders, an independent who caucuses with Democrats, said. "Without these standards of decency and morality, this planet may rapidly descend into anarchy, never-ending wars, and barbarism."

If the Biden administration were to sanction ICC officials, it would threaten to further divide Democrats at a time when Biden is already facing heavy criticism from some within his own party over his handling of Israel's war in Gaza, which has killed more than 35,000 Palestinians over the past seven months, according to local officials.

It began after the October 7 attack where Hamas militants crossed into southern Israel, killing 1,200 people and taking some 250 others hostage. (About half were released during a temporary ceasefire in November).

Polls show growing disillusionment—especially among young voters—over Biden's handling of the war and the anti-war protests that erupted on college campuses nationwide. At a time when Biden is facing a tough reelection fight against presumptive GOP presidential nominee Donald Trump, the fallout could cost Biden support in the battleground states he needs to win in November.

Newsweek reached out to the White House and the Biden campaign for comment.

Khan's decision to request warrants for both Israeli and Hamas leaders "puts Biden in an awkward spot," Dan Krcmaric, an associate professor of political science at Northwestern University, told Newsweek.

"Biden has to be careful about opposing the ICC too aggressively. The Democratic Party is already split over Israel's war in Gaza. Attacking the ICC over the arrest warrants will not sit well with the party's progressive wing, which tends to agree with the ICC's assessment that Israeli leaders might be war criminals," he said.

Krcmaric said it was not surprising that Biden's initial reaction was to denounce the move. "Biden has traditionally been a strong supporter of Israel, and criticizing the ICC is a way to stand by an ally," he said.

"But the U.S. also has a self-interested reason to push back against the ICC in this case," he said. "As a general rule, the U.S. opposes ICC attempts to exercise jurisdiction over individuals from states (such as Israel and the U.S.) that never joined the Court, fearing a precedent that might ultimately lead to prosecutions of Americans. In this sense, Biden may see attempts to protect Israelis from the ICC as indirectly protecting Americans too."

Thomas Gift, an associate professor of political science and the director of the Centre on U.S. Politics at University College London, told Newsweek that the U.S. has "always had a fraught relationship" with the ICC, even before George W. Bush's administration passed the American Service Members Protection Act, also known as "The Hague Invasion Act," which sought to immunize U.S. troops from potential prosecution by the ICC.

Biden's position "shouldn't be surprising to anyone," Gift said. "However, it does put him increasingly at odds with his left flank.

"In 2022, for example, Rashida Tlaib, Alexandria Ocasio-Cortez, and Ilhan Omar were all co-sponsors of the failed Repeal Hague Invasion Act and have alleged that the United States has been hypocritical by only supporting the ICC when it serves the nation's geopolitical interests."

However, Grant Reeher, a political science professor at Syracuse University, said he does not think the ICC's actions will have much bearing on Biden's chances in November.

"Organizations like the ICC are regularly seen here as driven by countries that are anti-American, like the way the U.N. is now often perceived," Reeher told Newsweek.

"And that's only if people are even aware of the organization. Additionally, the U.S. is in a more isolationist mood at the moment, lowering the impact here of those organizations. And both Hamas and Netanyahu, as well as Biden, have condemned the action. So this is one thing all parties seem to agree on."

Krcmaric and Reeher said Biden is unlikely to impose the kind of sanctions that Trump imposed on then-ICC prosecutor Fatou Bensouda and other officials over an investigation into whether American forces committed war crimes in Afghanistan.

Biden lifted the sanctions in April 2021, but Blinken said at the time that the step was being taken even though the U.S. continued "to disagree strongly with the ICC's actions relating to the Afghanistan and Palestinian situations" and "maintain our longstanding objection to the Court's efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel."

But any "excessive American hostility toward the ICC over Israel risks undermining U.S.-ICC cooperation concerning the Court's investigation of Russian war crimes in Ukraine, a Biden administration priority," Krcmaric said.

The U.S. backed the ICC's decision last year to serve an arrest warrant on Russian President Vladimir Putin over the war in Ukraine. Russia is also not a party to the Rome Statute.

"Biden is walking a tightrope," Krcmaric added. "Biden administration officials will likely voice criticisms of the ICC as long as the arrest warrant saga plays out. But a return to the fully-fledged attacks on the ICC that occurred under Donald Trump remains unlikely."

Biden has "already come out strongly against the arrest warrant for Israeli leaders," Reeher added. "That, in my opinion, is probably enough. To go further and retaliate in some way would only fuel the protests here, which he would like to see dissipate, especially with a possible peace deal."

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