Blocked, But Not Buried: The ICC Sanctions Act
Senate Democrats have blocked the Republican-led Illegitimate Court Act, a measure aimed at sanctioning the International Criminal Court (ICC) and its supporters for issuing warrants against Israeli officials Benjamin Netanyahu and Yoav Gallant for crimes against humanity and war crimes.
The House passed this act earlier this month with bipartisan support, marking the second time since July 2024 that the act made it through the preliminary stage of voting before being presented to the Senate. In its previous iteration, it also failed to pass the Senate, which was under a Democratic majority at the time.
More important than the fact that Senate Democrats blocked the Act is the reason behind their decision, because this decision by Senate Democrats was not based on their principled refusal of the premise or intention, but rather a difference of opinion on the best approach. Both parties support the sanctioning of the ICC, where they diverged was in how to sanction the Court.
As a global superpower, the U.S. has long approached international law as 'rules for thee, not for me,' leveraging global legal frameworks against adversaries while shielding itself from their jurisdiction.
This selective approach was on full display when the ICC issued an arrest warrant for Vladimir Putin—an action that drew bipartisan praise from U.S. officials, with the Biden administration even pledging support for the Court's investigations. The contrast with its reaction to the Israeli warrants is stark.
So with their goals aligned, where did the two parties differ on the Act?
Breaking the Court or Bending the Rules?
The differences revolved around the breadth and scope of the Act as drafted, and its potential effects on American allies and companies. Senate Minority Leader Chuck Schumer and raking Member Jeanne Shaheen both reiterated their support for the idea of sanctioning the court, expressing hope that they could negotiate better drafting to ensure its effectiveness.
Their criticisms of the Act revolved around the damage it could inadvertently incur on American companies providing services to the Court, and concerns about how it would affect U.S. relations with allies who are members of the ICC, chief among them European countries.
They also referred to the potential damage that the U.S. itself could incur from severing all connections with the ICC, which would reduce its ability to leverage it against its adversaries, or those it seeks to pressure. It would limit U.S. ability to cooperate with the Court to pursue actors like Vladimir Putin or those working against U.S. interests in other regions of the world.
The Republican and Democratic divide on ICC sanctions stems from differing views on the role of multilateral institutions in advancing U.S. power. On the Republican side, spurred by Trump’s disdain for multilateralism, multilateral engagement is seen as an undue burden that limits U.S. ability to impose its will and ‘get the best deal.’ It is seen as expendable, and more costly to American interests than it is useful.
On the Democrat side, the perspective is that these frameworks offer the U.S. a chance to amplify its power and influence through its alliances and partnerships. Rather than dismantle institutions outright, Democrats favor recalibrating them to serve U.S. interests. In this case, the goal is to use a focused approach that limits the sanctions to specific areas of ICC operation to hinder its ability to pursue Israeli officials while retaining its ability to pursue those selected by the American government.
While the Democrat’s approach is more nuanced and would limit damage to extraneous institutions and actors that may be working with the ICC, it retains the same lack of impartiality toward the court. If the version proposed by the Democrats went through, it would still signal the perpetuation of favoritism in international law, and the ICC would still face the same choice: capitulate to the U.S. and cease investigating Israeli officials, or face sanctions.
If the ICC caves to U.S. pressure, it risks solidifying its reputation in the Global South as a tool of Western power—one that selectively enforces justice against disfavored states while shielding allies. This could push members to withdraw from the Court, possibly degrading its remaining value on the international stage as a protector of international law.
The impact of the ICC’s capitulation could go beyond the Court itself, affecting the foundations of the international legal architecture as it stands today. Established in 2002, the ICC’s purpose is to prosecute individuals accused of the most serious crimes on the international level. It addressed an important gap in the international legal system at the time because while the International Court of Justics prosecutes states, individuals accused of crimes required the establishment of special tribunals, such as the International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for Rwanda.
The ICC therefore cannot be seen as susceptible to pressure, even from the most powerful states in the world, because that would impugn its impartiality and incentivize other international actors to withdraw their support for the Court and its functions, delegitimizing its role and reducing its impact.
Beyond Israel: What’s Driving the U.S. Standoff with the ICC?
The pressing question is why the U.S. is willing to risk further erosion of its international credibility to shield Israeli officials. Are the ties really strong enough that the American government would deprioritize its own long interests in favor of Israeli officials, many of whom could be outside the government in the coming years? Why would the U.S., a non-member of the court, with measures already in place to protect its servicemembers from being pursued by the Court, as well as a series of what are known as Article 98 Agreements with 93 countries (these agreements guarantee the non transfer of persons to the Court’s jurisdiction) be concerned about the Court’s activities?
The urgency behind this measure suggests deeper concerns beyond just Israel—namely, a growing unease over the potential applicability of international law to U.S. personnel. While the pretext of protecting its ally Israel is the main driving force, the U.S. government appears increasingly wary of the applicability of international law to its own personnel, and more concerned about the precedent set by a successful pursuit of a non-member of the Court, despite supporting the very same format when it came to Putin. Rather than allow this precedent to lay the foundation for future efforts by the ICC, it would prefer to contain this exercise to Russian officials and not broaden the scope of its applicability.
If it succeeds in bending the Court to its will on Israel, it will have gained effective control of the primary global body tasked with pursuing accused violators of international law, all without being a member. Acquiescence would indicate susceptibility to pressure, which can then be leveraged when the need arises in the future to align the direction of investigations with U.S. interests.
Furthermore, due to a series of internal legal considerations, the U.S. has a vested interest in ensuring that no Israeli official is successfully prosecuted for international human rights violations. Chief among them is the Leahy Law that prohibits the U.S. government from disbursing funds to foreign security forces credibly accused of gross violations of human rights, a law that would bind the U.S. government to withhold support from Israel if its officials were successfully prosecuted. That would impact the pursuit of U.S. strategic goals in the Middle East, and therefore necessitates intervention to ensure that it does not occur.
Where Does It Go from Here?
While the Act has failed to pass the Senate twice, it is unlikely to be the last time that we see it advanced for consideration by congress. With strong bipartisan support, and with the powerful AIPAC lobby pressing for these sanctions, another iteration could well manifest within the next few months. This act is also a rare instance of bipartisan agreement in a sharply divided legislative body that sees strong adversarial positions from both parties toward each other, and may present members of Congress an opportunity to show unity on a topic upon which there is broad consensus.
Whatever direction they decide to pursue, the act of passing the law twice through the lower house of Congress signals to the international community that there is increasing disregard for international law among U.S. lawmakers, and has already spurred the Court to to brace for the impact of any such sanctions.
The ICC cannot afford to capitulate on this issue because its legitimacy and credibility are at on the line. No other country would accept the Court’s jurisdiction if it withdrew its case against Israeli officials, and it could not afford to delay its issuance of the warrants in light of the precedent set by its warrants for Russian officials.
At the same time, the U.S. cannot allow its strategic interests to be affected by a Court decision over which it has no control. If investigations conclude that the accused were guilty of war crimes and crimes against humanity, then the U.S., under its own domestic laws would be constrained in pursuit of its interests in the Middle East. The situation therefore has reached a level of impasse, with neither party able to withdraw due to the key interests involved.
It is unclear how this standoff will be resolved, but under the current administration, we may see a repeat of President Trump’s executive orders to sanction the Court in 2020 when they sought to investigate U.S. troops accused of war crimes in Afghanistan. If Congress remains deadlocked, the President could bypass it altogether, issuing an executive order to impose sanctions on the ICC—just as he did in 2020.
With strategic interests, legitimacy, and credibility on the line, the way forward is riddled with obstacles. How they will be navigated remains to be seen.