After the second Dreyfus Affair, will the ICC target the US?

The International Criminal Court prosecutor said Monday that he would seek arrest warrants for both Israeli Prime Minister Benjamin Netanyahu and Hamas leader Yahya Sinwar. President Joe Biden called the move “outrageous” for its moral equivalence. He is right, but he misses the broader point. For the ICC, prosecutor Karim Khan, and celebrity advisers such as Amal Clooney, the target is not simply Israel, but also the United States.

The ICC is not an objective organization but rather allows political winds and public opinion to shape its actions. After Khan’s predecessors, Argentine lawyer Luis Moreno Ocampo and Gambian lawyer Fatou Bensouda, indicted a number of African officials including Kenyans, Rwandans, Central Africans, and Libyans, Africans questioned why the ICC singled them out. As a result, Bensouda floated the idea of indicting Americans for alleged war crimes in Afghanistan.

For 10 weeks beginning in November 2017, the ICC sent investigators to Afghanistan to look into supposed war crimes by U.S. forces, the CIA, some European partners, and the Afghan National Security Forces. In theory, the ICC mandate also included the Taliban, but in practice, the ICC was unable to go to Taliban areas. It was a silly, publicity-seeking move by Bensouda, and it went nowhere, though it did temporarily silence her African critics. When Afghanistan fell to the Taliban, an event that ushered in real abuses on a mass scale by the Taliban, the ICC ended its investigation, claiming it lacked adequate access. That Biden bested President Donald Trump also lessened the value of the scalp ICC bureaucrats sought.

Ambition also matters. As the United Nations high commissioner for human rights, former Irish President Mary Robinson embraced antisemitism to propel her career by rallying the world’s worst human rights abusers to her side. Today, she leads the “Elders,” a self-appointed counsel of the arrogant and unaccountable that professes to dispense wisdom and act as both judge and jury on matters of diplomatic concern.

Khan follows the same path. He ignores China’s repression of the Uyghurs, the atrocities the Iranian and Syrian regimes commit against their own people, and Azerbaijani President Ilham Aliyev’s ethnic cleansing of Nagorno-Karabakh. The failure to pursue any of these cases is not due to a lack of evidence.

The ICC could interview witnesses to the Uyghur genocide and review satellite imagery showing China’s imposition of the greatest industrial genocide since the Holocaust. “Caesar” defected from the Assad regime with more than 100,000 photos of torture and murder, and, much like Hamas, Azerbaijani forces filmed their atrocities, raping and mutilating women and beheading captive Christians. Simply put, Khan and Clooney might be the stars of the cocktail circuit for a week or so, but history will regard the ICC indictment of Netanyahu, its first indictment of a democratic leader, as a second Dreyfus Affair.

Their motivations may be corrupt, but Biden should recognize the danger to all Americans. The ICC grounded its indictment in alleged Israeli violations of humanitarian law during its counterterrorism operations against Hamas. The United Nations, however, surreptitiously revised downward Palestinian casualty figures by half. The Israel Defense Forces have therefore distinguished themselves as the most careful and civilian casualty-averse army in this history of warfare.

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I have walked through both the Iraqi city of Mosul and the Syrian city of Raqqa after American forces liberated them from the Islamic State. The destruction of each rivaled, if not surpassed, Gaza, and civilian casualties were immense. The Obama administration rightly did not take time out to resupply the population of either, as the White House knew the Islamic State would simply steal the aid.

By creating a standard in which almost any casualties lead to the indictment of elected leaders and their armies, Khan is setting the stage to tie the hands of all American leaders at a time when the liberal order is under unprecedented threat. Spluttering about “outrage” is not enough. Leaders such as Khan and Clooney today pose a far greater threat to the liberal order and human rights than any Israeli or American leader does.

Michael Rubin is a contributor to the Washington Examiner’s Beltway Confidential blog. He is the director of policy analysis at the Middle East Forum and a senior fellow at the American Enterprise Institute.

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