In ‘Hail Mary’ move, ICC prosecutor files surprise application as Senate set to vote on sanctioning court

In a move that some critics say was intended to influence the Trump administration and Congress, Karim Khan, controversial prosecutor for the International Criminal Court (ICC), filed applications for arrest warrants against Taliban senior leader Haibatullah Akhundzada and Taliban chief justice Abdul Hakim Haqqani for crimes against humanity.

The timing of the move came as the U.S. Senate prepares to vote on a bill to sanction the ICC over its request for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former defense minister, Yoav Gallant. The House bill passed on Jan. 9 with bipartisan support.

Khan’s "move is no doubt a Hail Mary pass to deter the Senate vote," Richard Goldberg, a senior advisor at the Foundation for Defense of Democracies, told Fox News Digital. He added that some in Washington "might fall for the charade… Khan and the ICC have already shown us who and what they are. They are still investigating Americans, they are seeking the arrest of Israelis, all red lines have been crossed and there’s no evading the consequences." 

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The Illegitimate Court Counteraction Act would sanction foreigners attempting to arrest, detain, prosecute or investigate citizens of the U.S. or its allies, including Israel. It would also attempt to regain funds designated to the ICC and stop further court contributions. The U.S. is not party to the Rome Statute.

Rebecca Hamilton, formerly a lawyer in the ICC’s prosecutorial division, wrote in Just Security about the double standard the U.S. is forced into by opposing the ICC following the Taliban arrest warrants. Given the timing of the Senate’s impending vote on a bill that "potentially threatens the ICC’s very survival," Hamilton wrote, "One might argue then, that the ICC Prosecutor’s announcement on Thursday was less about pursuing his mandate, and more about trying to save his job." 

In addressing the matter she added, "The discretion that the ICC Prosecutor has to determine when to go public with the announcement of an arrest warrant application is often used strategically, and surely has been in this case. But investigations of international crimes cannot be put together overnight."

Israel’s ambassador to the U.N., Danny Danon, told Fox News Digital, "Prosecutor Karim Khan has a myopic obsession over Israel with the war crimes charges leveled at Israel’s democratically elected prime minister and former defense minister. Equating the leaders of a democracy with leaders of the Hamas terrorist organization – and more recently, with the Taliban – is an insult to the principles of justice."

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Danon said, "The ICC has lost its credibility, and it’s about time for a review of the ICC’s – and Prosecutor Khan’s – true motivations for focusing so intensely – and so distortedly – on Israel."

Fox News Digital reached out to the ICC to ask why warrants against Taliban leaders have taken so long to issue, as well as about whether there is equivalence between the crimes for which the ICC seeks to charge Taliban leaders, and those for which the ICC has charged Netanyahu and Gallant. 

The Office of the Prosecutor told Fox News Digital that announcements in Afghanistan "marked the culmination of significant work between the Office and affected communities in seeking accountability for alleged crimes committed in Afghanistan." The office stated that its investigation into Afghanistan had only resumed on Oct. 31, 2022, after being deferred due to "an admissibility challenge by the former government of Afghanistan." 

Khan’s office said it follows the same protocol for the filing of all warrants, including those in Afghanistan and for Palestinians. It noted that in the past year, the ICC has "sought or obtained warrants for arrest in situations including Afghanistan, Ukraine, Myanmar/Bangladesh, State of Palestine, Libya and Mali as well as taking forward trials in the situations in Mali, Central African Republic and Darfur."

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A spokesperson from the European Union said that "the EU respects the court’s independence and impartiality." 

While the spokesperson did not speak to charges against Israeli officials, they said, "The EU and its Member States support initiatives that ensure accountability and regularly recall that systematic and systemic violations against women and girls in Afghanistan may amount to gender persecution, which is a crime against humanity under the Rome Statute of the ICC of which Afghanistan is a state party." 

A spokesperson for United Nations Secretary-General Antonio Guterres, did not respond to Fox News Digital’s questions about the equivalence between warrants for Taliban and Israeli leaders.

Sen. John Fetterman, D-Pa., Tweeted on Jan. 24 that he plans to vote for the ICCA, explaining that "the ICC's treatment towards Israel and equivocating to Hamas was unacceptable. We should absolutely sanction the ICC."

Goldberg, a former national security advisor during President Donald Trump's first term, warned "the sanctions coming out of Congress will certainly make life difficult for the officials and groups who are waging lawfare against us, but to actually cripple ICC operations and end the lawfare, we will need the Trump administration to impose sanctions directly on the ICC. I’m not sure American service members are safe until that happens."