Cutting US support for ICC because of Israel would hurt Ukrainian war victims
After request for arrest warrants against Hamas and Israeli leaders, Republicans want to sanction the International Criminal Court. But remember how the tribunal is fighting for justice for Ukraine.
I work with victims of crimes in Ukraine to seek justice. So I’m paying close attention to what the recent request by the International Criminal Court prosecutor for arrest warrants against Hamas and Israeli leaders will mean for U.S. support of the court.
On May 20, ICC prosecutor Karim Khan filed an application for arrest warrants against Hamas official Yahya Sinwar and Israeli officials Benjamin Netanyahu, the prime minister, and Yoav Gallant, the defense minister, among others.
The filing came amid U.S. senators' threats to the International Criminal Court. Members of Congress are preparing legislation to sanction the war crimes tribunal and its personnel.
However, the White House on Tuesday said it would reject the Republican-led congressional effort against the ICC.
Even so, I fear more extreme legislation to cut off U.S. support from the war crimes court in the coming days. That would be a travesty for victims like those I work with in Ukraine. It would also be terrible 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. That’s in part due to concerns that the ICC investigations into Afghanistan and Palestine would implicate U.S. and Israeli personnel.
The latest pushback from U.S. policymakers on Israel is reminiscent of 2020, when then-President Donald Trump authorized economic sanctions and entry visa restrictions against ICC officials, including the prosecutor’s predecessor. In 2021, the order was rightly revoked by the Biden administration.
On the other hand, when it comes to the ICC investigations that concern U.S. adversaries, Washington has been active in its support.
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After Russia’s full-scale invasion of Ukraine in 2022, the United States supported the ICC prosecutor’s investigation of Russian war crimes in Ukraine – especially dealing with Russian officials targeting civilian infrastructure and kidnapping Ukrainian children from the occupied territories.
Congress even amended legislation to enable more support for the war crimes court.
Double standards on war crimes would be morally unjustifiable
Ongoing U.S. support to the ICC investigation of Ukraine is likely to be invaluable. Ukraine’s investigative and intelligence authorities are unlikely to have access to the high caliber of information that can be provided by the United States, including because Ukrainian authorities don’t have access to territories where the international crimes are being committed and the scale of violations is so profound, not to mention that their attention is needed elsewhere with the war raging.
The International Criminal Court's ability to issue arrest warrants against Russian political leadership and military commanders within two years of the start of the investigation has been impressive. It shows 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 illustration of what the ICC can do with the right resources and, most important, the right support. The United States should be proud of supporting the victims of Russia’s grave international crimes.
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U.S. support in one situation like Ukraine, however, and condemnation against the court in another raises concerns of selectivity and double standards. Should the ICC be sanctioned again, or should U.S. support for all court investigations be withheld across the board, such a stance would mean that some victims are more deserving of justice than the others.
This approach is morally unjustifiable. It is also not in the best interest of the United States – given that the ICC is the only court capable of adjudicating war crimes on the magnitude of the situations of Ukraine and Palestine under the ICC investigation.
U.S. leaders may disagree with the findings of the war crimes court when it comes to their allies, but that is no reason to dispense with the ICC or to interfere with the court’s independence.
U.S. legislators should remember the progress they’ve made toward justice for Ukrainian victims. They should let the ICC prosecutor and judges do what they have been elected by 124 countries to do and support them where possible.
Victims of the worst crimes deserve equal 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.