US considers new legal action challenging ICC jurisdiction over Israel

The United States is considering legal action to challenge the authority of the International Criminal Court (ICC) to seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his defence minister for alleged war crimes in Gaza, Middle East Eye can reveal.

A US official briefed on the matter told MEE that the Biden administration is considering submitting an amicus curiae brief to the ICC, expressing strong opposition to the decision by the court’s chief prosecutor to seek arrest warrants for Israeli officials, despite the US not being a signatory to the treaty that created the court.

The previously unreported deliberations come as part of a lobbying campaign at the highest levels of the Biden administration to prevent the UK from dropping its legal challenge to the ICC.

The US official, who spoke to MEE on condition of anonymity, said US Secretary of State Antony Blinken had personally asked his British counterpart, David Lammy, to continue challenging the court’s jurisdiction over Israeli citizens.

Blinken discussed the ICC case with Lammy on Tuesday on the sidelines of the NATO summit in Washington, DC.

The minutes of the meeting do not mention the ICC case, but say the two men discussed “the need to achieve a ceasefire in Gaza that secures the release of the hostages and lays the foundations for lasting peace.”

Lobbying of the Biden administration has intensified as Keir Starmer’s new Labour government is due to decide by July 26 whether to continue its challenge to the country’s former Conservative government.

“We do not comment on alleged leaks,” a US State Department spokesperson told MEE after the report was released when asked whether the administration was considering a legal attempt to influence the ICC’s jurisdiction over Israel.

Biden struggles to respond to ICC

The ICC allows a state, NGO or individual to file an amicus curiae. It is unclear whether this will influence the ICC, which has submitted its own amicus curiae to the US Supreme Court in the past. The ICC has the discretion to invite parties it considers to have an interest in a particular case to submit an opinion.

Unlike the UK, the US is not a signatory to the Rome Statute which established the ICC in 2002.

Congress also passed laws aimed at limiting U.S. support for the court. It carved out an exception that allowed the Biden administration to cooperate with the court in its war crimes case against Russia.

Any U.S. decision to formally state its opposition to the measure is likely to be symbolic.

The Biden administration has made no secret of its objection to the court’s decision to seek arrest warrants for Netanyahu and Israeli Defense Minister Yoav Gallant, as well as senior Hamas officials in the Gaza Strip.

“The ICC prosecutor’s request for arrest warrants against Israeli leaders is outrageous. And let me be clear: No matter what the prosecutor may imply, there is no equivalence – none – between Israel and Hamas. We will always stand with Israel against threats to its security,” the White House said in a statement after the ICC announced it was seeking the warrants.

Blinken also said the ICC’s chief prosecutor had snubbed Israeli offers to collaborate with the court on its investigation. The United States felt particularly caught off guard because it was working to coordinate the visit. Attorney General Karim Khan’s office said Israel never approved his fact-finding mission.

“Our position on the ICC’s jurisdiction in this situation is well known,” a State Department spokesperson told MEE when asked for comment on the report.

Biden has faced intense pressure from Republican and Democratic lawmakers to oppose the ICC. Despite strong statements and behind-the-scenes lobbying, the US president has struggled to mount a response, in part because he has presented himself as a defender of international institutions, unlike former US President Donald Trump.

At a Senate hearing in May, Blinken told lawmakers he would be “happy to work with you” to sanction the ICC.

The administration was forced to reverse course shortly afterward, amid backlash from Democratic lawmakers. The move appeared to confuse Israel. Mr. Netanyahu said he was “disappointed” by the news.