“The Hague Invasion Act”: A U.S. Law Allowing a Military Intervention to Rescue Netanyahu

On Thursday, November 21, 2024, the International Criminal Court (ICC) issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant on charges of committing war crimes in Gaza. The ICC’s legal team emphasized that any engagement with a war criminal exposes individuals or states to legal accountability, a principle that applies to nations and political figures alike.

European countries, UN officials, and human rights organizations welcomed the ICC’s decision. Josep Borrell, the EU’s High Representative for Foreign Affairs and Security Policy, stated: “The ICC’s arrest warrant for Netanyahu and Gallant is not political and must be respected and implemented by all states and ICC partners.” However, Israel and its ally, the United States, strongly rejected the decision.

In response, many U.S. senators and representatives threatened punitive actions against the ICC, citing a controversial American law known as the “Hague Invasion Act.” This law authorizes military action against the ICC and raises questions about its implications.

What Is the Hague Invasion Act?

The American Servicemembers’ Protection Act (ASPA), often referred to informally as the Hague Invasion Act, was enacted in 2002 after being signed into law by President George W. Bush. It was introduced in the wake of the September 11, 2001 attacks.

Notably, President Joe Biden, as a senator, was among the bipartisan lawmakers who supported the law at the time.

The law derives its nickname from Section 2008 of the ASPA, which authorizes the U.S. President to use “all necessary and appropriate means” to secure the release of U.S. military personnel or “covered allied persons” who are detained or prosecuted by the ICC.

The term “covered allied persons” includes military personnel, elected or appointed officials, and others working for NATO member states or major non-NATO allies of the U.S., including Australia, Egypt, Israel, Japan, Jordan, South Korea, and others.

This provision allows the President to order military action—potentially including an invasion of the Netherlands, where The Hague is located—to protect U.S. personnel or allies from ICC prosecution.

Origins and Controversies

The legislation was introduced by Senator Jesse Helms (R-NC) and Representative Tom DeLay (R-TX) as an amendment to the 2002 Supplemental Appropriations Act, aimed at responding to and recovering from terrorist attacks on the U.S.

At the time of its passage, Human Rights Watch criticized the law, noting that its language implicitly granted the U.S. President broad powers to oppose the ICC. The organization stated: “The new law permits the use of military force to free any American or allied citizen detained by the ICC in The Hague.”

The Biden administration has refrained from directly invoking the Hague Invasion Act in its condemnation of the ICC’s arrest warrants for Netanyahu and Gallant. Instead, President Biden stated: “We will always stand by Israel against threats to its security.”

Nevertheless, proponents of Israel have referenced the law in their calls for a strong U.S. response to ICC Prosecutor Karim Khan. Some, such as veteran diplomat Elliott Abrams, underscored the ambiguity surrounding the ICC’s reach and the U.S.’s readiness to counter it, saying: “As the name ‘Hague Invasion Act’ implies, no one knows how far the ICC is willing to go, or how far Americans are willing to go to defend themselves.”

Congressman Brian Mast, a staunch supporter of Israel, was more explicit in his warnings, stating: “America does not recognize the ICC, but the court will certainly understand what happens when it targets our allies.”

U.S. Double Standards on the ICC

Critics argue that the U.S.’s contradictory stance on the ICC highlights its selective approach to international justice. Senator Lindsey Graham, who recently threatened sanctions against ICC Prosecutor Karim Khan over the arrest warrants for Israeli leaders, had previously called on the Biden administration to support ICC charges against Russian President Vladimir Putin for war crimes.

This inconsistency underscores the broader tensions between the U.S. and the ICC. While the U.S. was instrumental in the ICC’s creation under President Bill Clinton, it withdrew its signature from the Rome Statute in 2002 under President George W. Bush, signaling its intent not to ratify the treaty.

As of March 2023, the ICC has 123 member states, primarily from Europe, Latin America, and sub-Saharan Africa. Major non-members include the U.S., China, Russia, Indonesia, and most Arab states.

Legal and Political Implications

The Hague Invasion Act imposes sweeping restrictions on U.S. cooperation with the ICC. It bars federal, state, and local governments from assisting the ICC, limits the sharing of national security and law enforcement information that could facilitate ICC investigations, and prohibits military aid to ICC member states—except for NATO allies and nations that have signed “Article 98 agreements,” which pledge not to extradite U.S. citizens to the ICC.

However, the law does not prevent the U.S. from supporting ICC prosecutions against its adversaries. Washington has cooperated with the ICC in cases involving foreign nationals when the accused parties were deemed enemies of the U.S.

The law also restricts U.S. participation in UN peacekeeping missions unless American soldiers are granted immunity from ICC prosecution.

The U.S. and ICC Relations: A Tumultuous History

Tensions between the U.S. and the ICC date back to the court’s establishment. In 2002, the U.S. vetoed the extension of a UN peacekeeping mission in Bosnia after the Security Council refused to grant U.S. forces immunity from ICC prosecution.

Subsequent administrations have maintained a cautious approach to the ICC. In 2015, the Obama administration threatened to withhold $440 million in aid to the Palestinian Authority after it joined the ICC. Similarly, under President Trump, the U.S. imposed sanctions on ICC Prosecutor Fatou Bensouda and her team over investigations into alleged war crimes by U.S. and Israeli forces.

These sanctions were lifted in April 2021 under President Biden, signaling a temporary thaw in relations. However, Biden’s administration has continued to oppose ICC investigations involving Afghanistan and Palestine, asserting that the ICC lacks jurisdiction over the U.S. and Israel as non-member states.

The Road Ahead

Amid mounting evidence of Israeli war crimes in Gaza, widely regarded as some of the most documented in history, the ICC’s move to issue arrest warrants for Netanyahu and Gallant marks a pivotal moment. However, the U.S. response, including the invocation of laws like the Hague Invasion Act, suggests a continued reluctance to allow international accountability for its allies.

The implications of these arrest warrants extend beyond the ICC, challenging the global community to reckon with the enforcement of international law against powerful states and their allies.