New ICC Prosecutor Provides Opportunity for Closing Investigations of U.S. and Israel

British lawyer Karim Khan was sworn in on Wednesday to replace Fatou Bensouda as chief prosecutor of the International Criminal Court (ICC), where he will serve a nine-year term. One of Khan’s top challenges will be deciding how to handle the ICC’s current, Bensouda-spurred investigations of the United States and of Israel.

The ICC is investigating U.S. personnel for alleged war crimes related to Afghanistan. The Military Coalition, representing more than 5.5 million current and former U.S. service members, has warned that this investigation “could lead to the arrest, prosecution, and detention of American military personnel and veterans in foreign countries.”

The ICC is separately investigating Israeli personnel for alleged war crimes, including “willful killing” of civilians and “the transfer of Israeli civilians into the West Bank.” Israel has reportedly prepared a list of several hundred current and former Israeli officials who could be subject to arrest abroad if the case moves forward.

The Biden and Trump administrations and over 330 members of Congress from both parties have rejected the ICC investigations of the United States and Israel as illegitimate. Secretary of State Antony Blinken said on April 2: “We continue to disagree strongly with the ICC’s actions… We maintain our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.”

Since the ICC’s founding in 2002, every U.S. administration, of both parties, has refused to join the court, fearing the ICC’s politicization and misuse. Bensouda’s politicized investigations of the United States and Israel confirmed America’s worst fears about the ICC.

The ICC charter provides the prosecutor with considerable discretion over whether to proceed with pending cases. Khan has several good reasons to close the cases against the United States and Israel that his predecessor pursued.

In September 2020, an Independent Expert Review of the ICC, commissioned by the ICC member states, criticized the court for “unsustainable” pursuit of too many cases, including some with “limited feasibility” and insufficient “gravity” – apparent references to the U.S. and Israeli cases.

Meanwhile, the ICC has been ineffective in achieving its core mission. Since its 2002 creation, the court has spent over $2 billion to achieve only nine convictions (just four of them for major crimes). According to the Independent Expert Review, the ICC under Bensouda was also plagued by management issues, including rampant sexual harassment.

In recent years, a handful of ICC members that are close U.S. allies – led by Japan, Germany, the United Kingdom, France, Italy, Canada, and Spain – have provided more than half the court’s annual budget. Those that are NATO members face similar challenges in fighting terrorists as do U.S. and Israeli forces and could be hamstrung by precedents set by an ICC prosecution of their American and Israeli counterparts.

The ICC recently closed its examination of alleged UK war crimes, explaining that the United Kingdom carried out its own “genuine” investigations into the allegations. A similar halt to the U.S. and Israeli cases would be consistent both with the court’s own rules and with the Independent Expert Review’s recommendations.

A reset in the ICC’s relationship with the United States would help the court more effectively pursue cases that are squarely within its mandate. Cooperation the ICC received from the Obama administration was pivotal for several of the court’s rare successes. This included a U.S. vote at the Security Council to refer the situation in Libya to the ICC, and a U.S. offer of rewards for information leading to the arrest of several ICC indictees. It is hard to imagine the Biden administration resuming such cooperation so long as the investigations continue.

Karim Khan’s inauguration as the new ICC prosecutor enables a reset of the U.S.-ICC relationship. The Biden administration should work with U.S. allies to encourage Khan to refocus the ICC on its core mission, including by closing his predecessor’s cases against the United States and Israel and by remedying the ICC’s serious management problems.

Orde Kittrie is a law professor at Arizona State University and a senior fellow at the Foundation for Defense of Democracies (FDD), where he also contributes to FDD’s Center on Military and Political Power (CMPP) and Center on Economic and Financial Power (CEFP). He previously served for a decade as an attorney in the State Department Legal Adviser’s Office and is the author of Lawfare: Law as a Weapon of War (Oxford University Press, 2016). For more analysis from Orde, CMPP, and CEFP, please subscribe HERE. Follow Orde on Twitter @ordefk. Follow FDD on Twitter @FDD and @FDD_CMPP and @FDD_CEFP. FDD is a Washington, DC-based, nonpartisan research institute focusing on national security and foreign policy.