If you want to see just how out of control the International Criminal Court’s prosecutor is, consider this: Not only is Karim Khan seeking charges against Israeli Prime Minister Benjamin Netanyahu for his conduct of the war in Gaza, he is threatening to prosecute members of Congress who push back on the ICC’s unlawful efforts to indict the Israeli leader.
On April 24, a group of senators led by Tom Cotton (R-Ark.) sent a letter warning Khan that any attempt to prosecute Israeli officials would be “illegitimate and lack legal basis” because “neither Israel nor the United States are members of the ICC and are therefore outside of your organization’s supposed jurisdiction.” Cotton added that Congress would interpret an arrest warrant for Netanyahu “not only as a threat to Israel’s sovereignty but to the sovereignty of the United States” that would result in “severe sanctions against you and your institution.”
Khan’s office responded in a statement saying that when “individuals threaten to retaliate against the Court or against Court personnel … such threats, even when not acted upon, may also constitute an offence against the administration of justice under Art. 70 of the Rome Statute,” which “explicitly prohibits both ‘[r]etaliating against an official of the Court on account of duties performed by that or another official’ and ‘[i]mpeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties.’”
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Think about that: Khan not only suggests he has the right to indict Netanyahu, but also Cotton, House Speaker Mike Johnson (R-La.) and other members of Congress seeking new sanctions on ICC officials who investigate U.S. citizens or allies. As Cotton told me in a podcast interview, Khan is “a prosecutor who can dish it out but can’t take it and threatens his critics with prosecution themselves in total disregard for principles of freedom of speech.”
Khan has no jurisdiction to prosecute members of Congress — or any Americans — because the United States is not a party to the Rome Statute, which created the ICC. And the fact that he dares to threaten U.S. legislators carrying out their duties as elected representatives of the American people shows why his rogue tribunal needs to be brought to heel.
Follow this authorMarc A. Thiessen's opinionsThis shameful moment has been a quarter-century in the making. In December 2000, my former boss, Senate Foreign Relations Committee Chairman Jesse Helms (R-N.C.), warned in Haaretz that Israel should not join the ICC because the court “will have an independent prosecutor answerable to no state or institution for his or her actions” who could one day issue “criminal indictments against Israeli soldiers, military commanders and government officials all the way up to the prime minister himself.”
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To address this danger, Helms introduced the American Servicemembers’ Protection Act, a law designed to punish the court for any efforts to prosecute U.S. citizens or allies. The Senate approved the measure by an overwhelming 75-19 vote (then-Sen. Joe Biden was among the nays), and was signed into law in 2002 by President George W. Bush. So not only has the Senate not ratified the ICC treaty, Congress explicitly authorized the president to use “all means necessary” to shield U.S. citizens and allies from ICC prosecution.
What Khan is doing today “is exactly the kind of thing that Jesse Helms predicted would happen a few decades ago with this court,” Cotton said. Back then, the court’s supporters assured critics that its prosecutors would focus on grievous human-rights abuses by the world’s dictators, not on democracies with robust and transparent legal systems capable of policing their own citizens.
They were wrong. Khan has not indicted Chinese dictator Xi Jinping, who is carrying out genocide against the Uyghurs. Nor has he indicted Iran’s Supreme Leader Ayatollah Ali Khamenei or Syrian dictator Bashar al-Assad. But he has targeted Netanyahu, the leader of a democracy with an impartial justice system that holds its own leaders to account — as evidenced by the fact that Netanyahu has been indicted on corruption charges.
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The ICC has tried to go after Americans as well. Cotton points out that when Donald Trump was president, Khan’s predecessor announced an investigation into alleged war crimes by U.S. forces in Afghanistan. “Trump lowered the boom on them,” Cotton says, “He revoked the prosecutor’s U.S. visa, he sanctioned other ICC leaders and he labeled the court a threat to the United States.” But on taking office, “the Biden administration revoked all those actions that Donald Trump took.” They are learning what a mistake that was.
Sanctions are just one way to hold the ICC to account. Another option being discussed on Capitol Hill is to make it a federal crime for officials of the ICC — or anyone acting pursuant to a request from the ICC — to indict, arrest, detain, prosecute or imprison an American, as well as the personnel of any U.S. ally from a country not party to the Rome Statute if the government requests protection from the United States. Cotton also suggests it could be possible to indict Khan under existing statutes, such as those barring material support for terrorism.
“Karim Khan might find himself in an American prosecutor’s crosshairs come next year when there’s a new attorney general that actually puts American interests first,” Cotton told me. “If he thinks that it’s all fun and games to slap an arrest warrant on Benjamin Netanyahu so he can’t travel internationally, maybe he should get a taste of his own medicine.”
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