Justice for Some: The U.S. House Targets the ICC

The U.S. House of Representatives has once again turned its sights on the International Criminal Court (ICC), passing a bill that highlights America's increasingly fraught relationship with global mechanisms.

On 9 January, the House passed the Illegitimate Court Counteraction Act, renewing its campaign to impose sanctions on the ICC. This bill is an amended version of the same bill passed in the house last year, reintroduced by the new Chair of the Foreign Affairs Committee Brian Mast, an ardent supporter of Israel, and Chip Roy. The bill did not pass the Democratically controlled Senate in its previous iteration and was therefore not signed into law.

This time around, the picture is somewhat different. The new Speaker of the Republican majority Senate, Mike Johnson, expressed his support for the bill and looked forward to passing it through the Senate and presenting it to the incoming president for signature into law.

President Elect Trump, who previously sanctioned officials of the ICC for pursuing investigations that could potentially entangle U.S. personnel, will be more likely to sign this into law if it came across his desk than President Biden would have been; Biden revoked the sanctions imposed by Trump, adopting the view that engagement with the Court is a more effective way to assert U.S. influence without removing a useful tool that it can wield against international rivals.

The Congress introduced the bill in reaction to the ICC’s decision to pursue and then issue warrants against Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant the former Israeli defense minister for charges of crimes against humanity and war crimes during the war in Gaza, a decision described as ‘outrageous’ by outgoing President Biden.

(For more background about the ICC and the warrants issued for Netanyahu and Gallant, read my briefing here)

With the passing of the bill, questions naturally rise about its implications for the U.S. and the broader impact of this bill -especially if it passes the senate and gets signed into law- on the international legal architecture.

The Bill in Brief

The bill emphasizes that the ICC has no jurisdiction over either the U.S. or Israel, both of which are non-signatories to the Rome Statute that established the court, and referenced the American Servicemembers Protection Act of 2002 that was issued in the wake of the establishment of the ICC to protect American personnel and officials from prosecution.

It describes the ICC’s actions as dangerous precedents threatening the United States, Israel, and other partners that have not consented to the Court’s jurisdiction, emphasizing that the U.S. must oppose any actions by the ICC against it or its allies, through sanctions.

These sanctions include blocking property and assets within the U.S., the refusal of visas and the revocation of existing visas, and are to be levied against organizations or individuals engaged in or aiding the effort of the Court against U.S. or Israeli persons, including providing services or support such as financial or technological services.

The bill further instructed that any funds appropriated for the ICC were to be rescinded, and that no future funds could be appropriated for it.

Essentially the bill makes it challenging not only for the court to perform is functions, but also risks dragging financial institutions and service providers into the maelstrom of sanctions. By including not only those directly involved in any potential investigations within the scope of sanctions, banks that manage the Court’s accounts and other service providers may hesitate to continue cooperation with the ICC for fear of reprisals and economic consequences.

This lends credence to the concerns reflected by the President of the Court about the impact of this bill and its potential to undermine the operation of the ICC across all cases, and potentially undermine its existence.

Should banks, airlines, and other logistical service providers sever ties with the ICC due to sanctions, the court would potentially face operational paralysis. The bill is far reaching, with potentially devastating implications for the court.

Signaling Strength?

The rapid prioritization of this bill by the 119th Congress underscores the political will driving its passage. For it to be tabled and passed so quickly, particularly in light of the challenges facing the U.S. and congress in the meantime as the country deals with the devastation in California and the preparations for the incoming administration signal that the bill is at the top of the list of foreign policy priorities.

The sponsors of the bill, through their statements, seem to be attempting to send a message of resurging American strength on the international arena, while assuring their campaign donors of their commitment to their obligations towards them.

The new Chair of the Foreign Affairs Committee in the House, Brian Mast (who served as a volunteer in the IDF in 2015 and donned an IDF uniform in Congress in the wake of the October 7^th attacks) and cosponsor of the bill reasserted his commitment to and support for Israel. Chip Roy, cosponsor of the bill, added that he had concerns that if the ICC were allowed to prosecute Israeli officials, it could then set its sights on U.S. service members as well.

Yet from an outside perspective the reading of the bill is entirely different. Rather than convey a message of strength and assuredness, it signals deep concern and vulnerability. With the 2002 American Servicemembers Protection Act in place, coupled with the U.S. bilateral immunity agreements that the U.S. signed with over 100 countries across the world to ensure that U.S. persons would not be handed to the ICC in case of charges, American personnel were already well protected against any potential actions of the Court.

The current bill, when taken in conjunction with the American Servicemembers Protection Act also implies that congress believes U.S. personnel to be potentially engaged in violations of international law in their theatres of operation, and that they also believe that some elected officials in the U.S. could be accused of the same, necessitating preemptive protections to provide immunity against prosecution.

The bill reinforces perceptions that the U.S. is distancing itself from the international legal order it helped establish in the mid-20th century. When taken along with the U.S. opposition to the International Court of Justice’s Advisory Opinion on the accusations of genocide against Israel, the emerging pattern is one of a U.S. that is at odds with the international legal architecture.

Trump has made clear his disdain for multilateralism and the existing international architecture, and therefore we have an administration adverse to multilateralism and internationalism, empowered by a Congress that adopts a similar world view. Rather than a balancing act within the American system famous for its checks and balances, the scene here is one of an echo chamber where anti internationalist sentiments are expected to grow rather than be balanced out.

Global Implications

The bill has significant implications for the international legal order. Even if it does not pass the senate, the political will behind it remains steadfast. The current configuration of congress has made it clear that it will adopt a nigh purely adversarial approach to international politics as opposed to one geared to leverage and grow American influence abroad among allies and partners.

It also directly weakens one of the most important mechanisms of international accountability and justice in the world. If this bill becomes law, then other countries may feel emboldened to withdraw from the ICC, arguing that international law either applies to all or applies to none.

This could potentially shift the weight of the international order away from a law and rules-based system to a power based one, where power dynamics and influence overrule notions of common principles and law. Rising powers may welcome this as a chance to shape a new international order in a way that better aligns with their interests and international positioning.

A weakened ICC would benefit adversaries of the court, particularly Russia and other states accused of violating international law. An ineffective ICC, declawed and paralyzed by sanctions reduces legal and political pressure on actors that may feel freer to adopt policies violating international law in the pursuit of their own national interests. Absent a court of accountability, the deterrents against action may be outweighed by the gains resulting from actions that could constitute violations of international law.

The bill also erodes trust in the U.S., reflecting a reactionary approach driven by political sentiment rather than principled policy, it signals to the world that other such bills could be passed by the House whenever it deemed necessary to punish opponents of U.S. policies. This increases the perception of unreliability and adversity to dialogue and engagements, as well as potential inconsistency and discontinuity in U.S. foreign policy, after all it was not long ago that congress passed a bill commending the ICC for its decision to pursue warrants against Vladimir Putin for charges on his actions in Ukraine.

Perception vs. Reality

The necessity and urgency of issuing this bill is debatable, and highly dependent on the perspective of the observer. From the congressmen’s perspective it may have been critical to reflect their commitment to important donors to their election campaigns, chief among them AIPAC, thus ensuring continued donations in future cycles.

From a foreign policy perspective however, the trade off of this bill may not be in favor of the U.S. government. It does not improve U.S. standing in the global arena, framing it as a detractor rather than supporter of an international rules based order, and does not provide any additional protection to U.S. persons from the Court’s jurisdiction that was not already granted by the American Servicemembers Protection Act and the Bilateral Immunity Agreements I mentioned above.

It feeds into the Sino Russian narrative that the U.S. adopts stark double standards in international affairs, lending considerable credence to their arguments that the U.S. is an unreliable guarantor of international law, and that it wields it only in pursuit of its own political interests.

It also removes an important tool from the U.S. toolkit for managing international relations. Previous administrations wielded the Court and its rulings against rivals, even providing support for its investigations when expedient, while maintaining distance and immunity from its purview and jurisdiction, achieving a balancing act whereby it reaped the rewards without incurring the costs.

This bill however, designed primarily as an offensive tool against the court rather than a defensive one for the protection of U.S. persons and U.S. allies, puts the U.S. at direct odds with the Court. It makes future cooperation more problematic and considerably more challenging, and detracts from the weight of the court and its members as they seek to restore some power to international legal norms. Any future calls for accountability by the U.S. will be more credibly questioned by rivals and adversaries as a result of this bill.

What Lies Ahead?

The impact of the bill will largely depend on what happens next and whether it passes in the Senate, supported by the current Speaker, and is eventually signed into law by incoming president Trump.

If it becomes law, it would potentially foresee a blow to the Court, its ability to operate, and its effectiveness given the breadth of scope of the sanctions it includes. It would put the ICC in a bind, where if it were to pursue its investigation and seek the implementation of the warrants, it would find itself paralyzed by the web of sanctions that reaches anyone supporting its investigations. If it, however, decided to forgo its investigations, then it would lose any remaining credibility as an impartial body of international law.

In parallel, the U.S. itself would face negative repercussions from the implementation of this bill. By demolishing a bulwark of international accountability, it would effectively have attacked the very international order that it has carefully engineered over the past few decades, providing rivals a chance to effectuate changes to the system in ways that suit their interests. It also negatively impacts the U.S.’s global image; as a self-described champion of the international rules-based order, it often differentiated itself from rising rivals like China based on its adherence to principles, something that would no longer be possible in light of its overt antagonism to international legal bodies like the ICC.

Even if the bill fails in the Senate, its repeated passage in the House highlights persistent political will, suggesting it could resurface in the future, presenting a looming threat hovering around the court and the self-defined image of the U.S. as guarantor of international rules-based order.