Mayor Zohran Mamdani raised some eyebrows this week after he put out a video in which he called Israeli Prime Minister Benjamin Netanyahu a “war criminal” who was not welcome in New York City, even while acknowledging that a thorough legal review had determined that the city does not have the authority to arrest the foreign leader.
Mamdani had promised to explore whether he could order such an arrest to execute a warrant issued against Netanyahu by the International Criminal Court (ICC) in The Hague. The warrant alleged that Netanyahu had committed war crimes by using starvation as a weapon and intentionally targeting children and civilian population, among other things, in the Israeli response to the Oct. 7 terror attacks by Hamas. The mayor urged the federal government to make the arrest instead, presumably when Netanyahu is slated to visit New York during the annual U.N. General Assembly in September. That won’t happen, as President Donald Trump has already said that Netanyahu “will not be arrested, in any way, shape or form.” Still, it was notable for an elected official of Mamdani’s prominence to even entertain the possibility, in what was a sign of how public opinion in general and the Democratic Party’s gravitational center in particular have drifted away from a reflexive defense of Israel.
In speaking to reporters on the subject later on, Mamdani emphasized that part of his effort was about the preservation of the “rule of law” on the international stage, which is also an acknowledgement that his is an effort to use the bully pulpit and not just the specific powers of the NYC mayoralty to present a counter-narrative to the current national political environment. Even while Mamdani is not himself running for anything right now, he is shaping how Democrats communicate about and how the public understands accountability and the role of the U.S. on the global stage, on Israel, yes, but also more broadly.
The business of whether Mamdani could practically or legally have Netanyahu arrested by local law enforcement is interesting and (though Mamdani has not released the legal analysis he relied on) I think relatively clear cut – leaders of foreign governments on official business have diplomatic immunity, and foreign policy is the purview of the federal government. But it raises the more fundamental question of why the U.S. has been so openly hostile to the idea of accountability being enforced against American officials or those of allied governments by international entities in general and the ICC specifically. The U.S. never ratified the treaty that created the ICC and President George W. Bush undid President Bill Clinton’s decision to sign it. Since then, Harvard scholars Helen Clapp and Kathryn Sikkink have noted, U.S. presidents and Congress for the most part have viewed the ICC as an institution that can be deployed against opponents on the global stage but which should have no jurisdiction over our own actions.
The George W. Bush administration chose not to veto a 2005 U.N. Security Council resolution to refer the killings of civilians in the Darfur region of Sudan to the ICC, and the Obama administration introduced and voted in favor of a 2011 resolution to refer Libya to the court. As recently as 2022, the Senate unanimously approved a resolution introduced by the late GOP Sen. Lindsey Graham condemning Russian President Vladimir Putin as a war criminal and urging the ICC to investigate him.
Yet presidents from Clinton to Bush to Obama to Biden to Trump have also maintained confrontational stances with the international body,
and the U.S. has instead signed over 100 bilateral pacts with other countries, known as Article 98 agreements, to mutually not allow the extradition of each other’s current or former government and military officials to the ICC without the consent of their government.
Perhaps most infamously, in 2002 Congress passed and Bush signed the American Servicemembers’ Protection Act, sometimes called the “Hague Invasion Act,” which not only prohibited the government from supporting or cooperating with the ICC but gave it the authority to “use all means necessary and appropriate” to break U.S. or allied officials out of ICC detention. That can only really be read as a directive to use military force in and presumably against the Netherlands and ICC personnel to spring people who, ironically, might be accused of using military force against civilians.
In that context, it seems relatively clear that a U.S. arrest of Netanyahu not only wouldn’t happen but perhaps couldn’t legally happen – Israel, unsurprisingly, has signed one of those Article 98 agreements with the U.S. And just last week, Secretary of State Marco Rubio announced that the Trump administration would move from a posture of just refusing to cooperate to actively trying to “dismantle the ICC—brick by brick, if necessary,” using an array of tools including sanctions on ICC officials and diplomatic (and potentially military) pressure on signatory nations. This is a huge escalation.
The timing is suggestive, but this wasn’t necessarily triggered by the ICC’s interest in Netanyahu and Israel directly. The journal Just Security speculated that it had something to do with efforts by civil society groups to have the ICC investigate the Trump administration’s military strikes on boats in the Caribbean allegedly involved in drug trafficking – strikes on civilians that would seem pretty clearly illegal even if they are carrying drugs. In his op-ed, Rubio also brought up efforts by the ICC to investigate U.S. personnel for potential war crimes in Afghanistan.
Rubio and others have framed this as a question of sovereignty — that the ICC is a threat to U.S. sovereignty insofar as it asserts the right to put U.S. officials on trial for their official actions and incarcerate them if they’re convicted. Setting aside the irony of the Trump administration fretting about sovereignty after having unilaterally deposed the Venezuelan president and talking openly about other coups it could foment, the current situation is in line with how the international order is meant to work.
In the aftermath of World War II, nations got together to hash out systems that could prevent global war and atrocity, and this court is part of that legacy. But this tradition also includes the proviso that countries that don’t choose to sign on are not compelled to participate. That means, though, that the global mechanism for holding the perpetrators of war crimes and crimes against humanity accountable has to function without the nation with the world’s largest and most far-reaching military apparatus and a deeply complex system of global interests and alliances. That was a bad situation before, but it’s increasingly worrisome in the context of a U.S. presidency that has gleefully committed, even bragged about, potential war crimes already, both in the Caribbean and in Iran, with recent promises to destroy Iranian civilian infrastructure in retaliation for Iranian attacks on shipping in the Strait of Hormuz, for example.
So Mamdani’s Netanyahu analysis may have seemed a little quixotic at first, but I suspect it’s at least in part an effort to force this conversation about how and when, exactly, U.S. officials and their allies can ever answer to allegations of international law violations.
