The war in Gaza was never going to change the world order, but it has fully undermined notions of a “rules-based order.” On Monday, the International Criminal Court took the bold step of announcing it was seeking arrest warrants from the court’s judges for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for authorizing starvation and intentionally directing attacks against the civilian population of Gaza. At the same time, it announced it was also seeking warrants for Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri and Ismail Haniyeh for actions ranging from hostage-taking to torture.
In announcing the charges, ICC prosecutor Karim Khan remarked that, while Israel had “every right and indeed an obligation to get hostages back,” it was required to “do so by complying with the law.” In his estimation, it had failed to do so.
At first glance, this might seem like a victory for the rules-based order. And indeed, some observers lauded the charges, viewing them as a victory for international humanitarian law and a “historic step for victims.” A host of European governments subsequently expressed support for the ICC, and South Africa, which has accused Israel of genocide at the International Court of Justice, also welcomed the charges.
But there was also criticism of the decision, and that’s where the rules-based order didn’t do so well. And while Israeli and Hamas officials unsurprisingly opposed the charges, the criticism was not limited to them. Some accused the ICC of being swayed by politics and popular sentiment, rather than principled legal guidance. Others accused the court of weaponizing international humanitarian law and waging a “lawfare” campaign against Israel.
But most notable was the reaction of the United States. While the administration of U.S. President Joe Biden is a staunch supporter of Israel, it has also expressed serious misgivings over how Israel has been carrying out its military campaign in Gaza. These misgivings even led the administration to pause arms shipments to Israel over actions “inconsistent with humanitarian law” and to abstain from a United Nations Security Council resolution calling for a cease-fire, after having previously vetoed several similar resolutions.
Given these concerns and actions, one would have expected the Biden administration to at least offer a measured statement expressing “grave concerns” over the ruling, calling for all actors to ensure that their behavior is in line with humanitarian law and then perhaps saying that the quickest solution to the crisis is not through the courts but by the parties reaching a cease-fire.
That didn’t happen. Instead, U.S. Secretary of State Antony Blinken issued a statement calling the ICC’s actions “shameful.” Biden echoed Blinken’s harsh reaction, labeling the arrest warrants “outrageous.” He went on to say that “whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas.” The administration is going as far as to consider imposing sanctions against ICC officials.
The dismissive manner by which Biden and Blinken dismissed the ICC charges effectively undercut their efforts over the past three years to rebuild the perceived strength of international institutions.
The harsh response by Biden and Blinken might be disappointing to those who support the ICC’s decision. But their responses are problematic for a more fundamental reason: They undermine a core pillar of the Biden-Blinken foreign policy agenda, namely that the U.S. is the guardian of the rules-based order. Both of them commonly invoke that phrase to contrast U.S. behavior with that of Russia and China, casting those two states as revisionist powers unwilling to work within the arrangement of international institutions and legal rules established and enhanced since World War II.
While the ICC is a newer element of that order, established in 1998 by the Rome Statute, it is viewed by many states as a core element of the rules that make up the rule-based order. And although the U.S. is not a signatory of the Rome Statute, the Biden administration had voiced support for ICC rulings on other occasions. Most notably, when the court brought charges against Russian President Vladimir Putin last year, Blinken remarked, “I think anyone who’s a party to the court and has obligations should fulfill their obligations.” Biden himself called the ICC charges against Putin “justified,” while ordering U.S. intelligence agencies to provide evidence of Putin’s war crimes to the court. Hence, from the standpoint of the Biden administration, in bringing to light the crimes committed by Putin’s government, the ICC was showing that international law and norms matter.
Now, by dismissing outright the ICC’s charges against Israel’s leadership, Biden and Blinken have laid bare a hypocrisy born of power politics: ICC rulings are great for adversaries, but not for allies. It’s rules for thee, but not for me.
The truth is that the U.S. has a checkered history when it comes to adhering to the rules of the rules-based order. But until now, the Biden administration had at least sought to give the appearance of working within that order and had often extolled its virtues. The dismissive manner by which Biden and Blinken dismissed the ICC charges effectively undercut their efforts over the past three years to rebuild the perceived strength of international institutions following the years of neglect and disdain by the administration of former U.S. President Donald Trump.
Stated differently, the Biden administration just blundered in its global game of three-dimensional chess, as its support for Israel bolstered its rivals, Russia and China. While the Biden administration did not need to vociferously endorse the ICC’s decision, it could have followed the example of Malta, remarking that the ICC “should be allowed to carry out its work independently without any threats. Let those who need to defend themselves defend themselves in court.” Or Biden could have simply stated that he saw the ICC’s rulings as “unhelpful.” That would not have been so inconsistent with his earlier statements on the ICC’s prosecution of Putin and therefore would not have exposed him to accusations of hypocrisy.
For someone so astute in the ways of realpolitik as Biden, his response is particularly surprising. When the staunchest supporter of a rules-based order is openly hypocritical about the application of that order’s rules, it gives up the game. Even if one gives no weight to respecting norms and the law for their own sake, Biden’s knee-jerk reaction to the ICC’s ruling against Netanyahu, someone who Biden himself has disparaged, undermines his administration’s broader strategic objectives. International law can be a tool of the strong as much as protection of the weak, and Biden just mishandled that tool.
Paul Poast is an associate professor in the Department of Political Science at the University of Chicago and a nonresident fellow at the Chicago Council on Global Affairs.