President Joe Biden has condemned as “outrageous” an application by the International Criminal Court (ICC) for warrants seeking the arrest of the Israeli prime minister, Benjamin Netanyahu and his defense minister, along with senior members of Hamas, for actions carried out in Gaza. In a statement issued on May 20 Biden accused the ICC of drawing a false moral equivalence between Israel and Hamas.

Biden’s statement came after the ICC’s prosecutor, Karim Ahmad Khan, announced he was filing applications for arrest warrants for Netanyahu and Yoav Gallant, the Israeli defense minister. Khan is also pursuing the arrests of three leading Hamas figures, Yahya Sinwar, Mohammed Diab Ibrahim al-Masri (aka Mohammed Deif), and Ismail Haniyeh over Hamas’s attack on Israel on Oct. 7, 2023.

Biden’s comments were echoed by Secretary of State Antony Blinken, who said the United States “fundamentally rejects” the ICC warrant. He warned that it could jeopardize efforts to reach a ceasefire and accused the ICC of overstepping its authority. “The United States has been clear since well before the current conflict that ICC has no jurisdiction over this matter,” he said:

The ICC was established by its state parties as a court of limited jurisdiction. Those limits are rooted in principles of complementarity, which do not appear to have been applied here amid the prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed.

Members of Congress in both parties have reacted similarly. At a hearing of the Senate Foreign Relations Committee on May 21, Idaho’s Senator James Risch, the top Republican on the committee, asked whether Blinken would support legislation to address the ICC “sticking its nose in the business of countries that have an independent, legitimate, democratic judicial system.” In response Blinken even hinted that he may work with Congress to consider potential U.S. sanctions against the ICC.

The ICC’s move follows a separate case currently in front of a different institution of transnational jurisprudence, the International Court of Justice. That case involves accusations brought by South Africa that Israel was committing genocide with its actions in Gaza following last October’s attack. Israel vigorously denies the allegation, and the U.S. has condemned South Africa’s move.

The vehement reaction of the U.S. political and media establishment to the warrant against Netanyahu is in stark contrast with their response after the ICC issued an arrest warrant against Russia’s President Vladimir Putin on March 17, 2023. Putin was accused of moving hundreds of children from Ukraine to Russia. The Russians rejected the claim, insisting that the minors in question were mostly orphans who would be at risk if they remained in the war zone.

That same day Joe Biden welcomed the decision by Karim Khan (who had been appointed the chief ICC prosecutor in Feb. 2021), saying the court’s move “makes a very strong point” and that Putin had “clearly committed war crimes.” Antony Blinken for his part  urged all ICC member states to comply with the arrest warrant.

Four months later, in July of last year, Biden went a step further and ordered the government to start sharing evidence of alleged Russian war crimes in Ukraine with the ICC. At that time Senator Dick Durbin (D-Ill.), the Democratic chair of the Senate Judiciary Committee, and Lindsey Graham (R-S.C.), its ranking GOP member, lauded Biden’s decision. “After pressing the administration for months, we are pleased that [it] is finally supporting the ICC’s investigation,” the two senators said in a joint statement.

Twelve years earlier, the Obama administration was equally delighted when, on June 27, 2011, the ICC issued, an arrest warrant for the late Libyan leader Muammar Qaddafi. This decision came two months after the beginning of the U.S.-led NATO intervention against Libya. The State Department’s Victoria Nuland duly declared the U.S. believed the ICC made “the right decision” and White House spokesman Jay Carney called it “another step in this process of holding [Qaddafi] accountable.” That move was reminiscent of the U.S.-sponsored Yugoslav war crimes tribunal indicting Slobodan Milošević right in the middle of NATO’s Kosovo war against Serbia in 1999.

The difference between what’s happening now, and the events of March 2023 or June 2011, is clear: In the eyes of the U.S. government, the ICC becomes an illegitimate, politicized, quasi-judicial body if it does not act in accordance with Washington’s preferences. When it does operate according to Washington’s preferences, however, it is to be lauded. This situation may be explained by the fact that, just before the ICC started operating in 2002, Congress passed, on a bipartisan basis, the American Servicemembers’ Protection Act of 2001 that prevented the U.S. signing the Rome Statute establishing the ICC.

Until May 2024 the duopoly in Washington (and Democrats, in particular) had supported the ICC as an auxiliary tool of U.S. foreign policy. As John Bellinger III, a former legal advisor to the NSC, explained in April 2022, if the ICC does “what it was set up to do,” the U.S. should be helping it. “Of course,” he added, “if they start investigating politically motivated cases of us or others, then we can oppose that”:

[W]e will certainly open ourself [sic] up to some charges of hypocrisy because of these traditional concerns that the U.S. has had about the ICC’s investigation of the United States… It is unfortunate that the U.S. is not a party to the International Criminal Court. We should be. But for the time being, I think U.S. policy will have to continue to be… to support the court when it is doing what it was set up to do, which, in this case, the investigations of the Russian war crimes and crimes against humanity in Ukraine, is exactly what the court was set up to do.

Bellinger’s forthright explanation of the purpose of the ICC came over a year before it issued the warrant against Netanyahu, but it indirectly explains what happened. Since the U.S. is not a member, the ICC is effectively controlled by the West European section of the neoliberal international. These people are traditionally unfriendly to Israel, and they have become strongly hostile to it since the beginning of the Gaza operation.

In addition, it is possible that British-born Karim Khan is not immune to some degree of personal bias. Khan is a practicing Muslim who often cites the Quran in his public statements. He belongs to the messianic Ahmadiyya movement, which means he believes that Islam is the final dispensation for humanity as revealed to Muhammad and needs to be restored to its true and pristine form, which had been lost through the centuries.

This is not a dispute in which we can or should pick sides. On the one hand, the Biden administration is an enemy of all that America has traditionally stood for. On the other, the system of transnational criminal justice—of which the ICC is the flagship—is the antithesis of the system of checks and balances, of any recognizable constitutional design that delineates how laws are made, adjudicated, enforced, or made accountable. Its prosecutor is accountable to no superior executive power, elected or unelected.

The ICC is founded on the ideology of universal political and legal culture. It is the enemy of liberty as once understood and practiced in America. The moral absolutism at the core of the ICC world outlook is the rejection of real nations and cultures and the affirmation of wokedom in all its variations.

The ICC is a political court, no less than the one which convicted Donald Trump in New York. Both embody what Carl Schmitt characterized with reference to the League of Nations and its International Court as an abyss of indeterminacy. Both the ICC and Alvin Bragg’s court are indeterminate as to content: In both cases a “crime” is contingent on the value status of the alleged offender, and neither court is determinate regarding the “punishment.” Both are “hegemonic tools,” in Antonio Gramsci’s sense of elevating a particular interest to a universal value.  

A plague on both their houses.