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Israel protests against ICC arrest warrants. But the US should not sanction the court

After calling for arrest warrants against Hamas and Israeli politicians, Republicans want to sanction the International Criminal Court. But don't forget how hard the tribunal is fighting for justice for Ukraine.

Nadja Volkova
| Opinion piece

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I work with victims of crime in Ukraine to achieve justice, so I am following closely what the recent request by the International Criminal Court Prosecutor for arrest warrants against Hamas and Israeli politicians will mean for the United States' support of the Court.

On May 20, ICC prosecutor Karim Khan filed a request for arrest warrants against, among others, Hamas official Yahya Sinwar and Israeli officials Benjamin Netanyahu, the prime minister, and Yoav Gallant, the defense minister.

The request came in the wake of threats from American senators against the International Criminal Court. Members of Congress are currently preparing a bill that would impose sanctions against the war crimes tribunal and its employees.

However, the White House said on Tuesday that it would reject Republican-led congressional efforts against the ICC.

Still, I fear that even more drastic legislation will be passed in the coming days to withdraw U.S. support from the war crimes tribunal. That would be a travesty for victims like those I work with in Ukraine. It would also be devastating for U.S. credibility in the court of public opinion.

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The United States is not a party to the ICC and has had a complicated relationship with the international tribunal for years, partly due to concerns that the ICC's investigations into Afghanistan and Palestine could incriminate American and Israeli personnel.

The recent opposition to Israel by US politicians is reminiscent of 2020, when then-President Donald Trump approved economic sanctions and travel restrictions against ICC officials, including the prosecutor's predecessor. In 2021, the order was rightly revoked by the Biden administration.

On the other hand, Washington actively supports the International Criminal Court's investigations into US opponents.

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Following Russia's large-scale invasion of Ukraine in 2022, the United States supported the ICC prosecutor's investigation into Russian war crimes in Ukraine – particularly attacks by Russian officials on civilian infrastructure and the abduction of Ukrainian children from occupied territories.

Congress even changed the legislation to provide more support to the war crimes tribunal.

Double standards for war crimes would be morally unacceptable

Continued U.S. support for the ICC's investigation into Ukraine is likely to be invaluable. Ukraine's investigative and intelligence services are unlikely to be able to access the high-quality intelligence that the U.S. can provide. This is due in part to the fact that Ukrainian authorities do not have access to the areas where international crimes are being committed and the scale of the violations is so serious. Not to mention that their attention is needed elsewhere with the war raging.

The International Criminal Court's ability to issue arrest warrants against Russia's political leadership and military commanders within two years of starting investigations is impressive, demonstrating the value of a global, collaborative court that can fill a gap when national courts cannot or will not handle a case.

Ukraine has often been cited as an example of what the ICC can do with the right resources and, most importantly, the right support. The United States should be proud to support the victims of Russia's grave crimes under international law.

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However, US support in one situation such as Ukraine and condemnation of the Court in another raises concerns about selectivity and double standards. Should the ICC be sanctioned again, or should US support for all judicial investigations be withdrawn across the board, such a stance would imply that some victims deserve justice more than others.

This approach is morally indefensible. Nor is it in the best interests of the United States, given that the ICC is the only court capable of prosecuting war crimes on the scale of the situation in Ukraine and Palestine, which are the subject of the ICC's investigation.

The US government may disagree with the war crimes tribunal's findings regarding its allies, but that is no reason to abandon the International Criminal Court or undermine its independence.

U.S. lawmakers should remember the progress they have made in getting justice for the Ukrainian victims, let the ICC prosecutors and judges do the job they were elected to do by 124 countries, and support them wherever possible.

Victims of the worst crimes are entitled to the same access to justice that only the International Criminal Court can provide.

Nadia Volkova is the founder and director of the Ukrainian Legal Advisory Group in Kyiv.

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