Following recent reports that the International Criminal Court (ICC) might soon issue arrest warrants in its investigation of “the situation in Palestine,” several members of Congress have threatened crippling sanctions against the court’s officials. These threats come just weeks after Congress was moved by Russia’s full-scale invasion of Ukraine to appropriate funds for the ICC for the first time, in a case of congressional whiplash that points to the costs of the contradictory U.S. posture toward the ICC.

The new appropriations for the ICC received little public attention when they were included in the government funding bill passed in late March, but they expanded the growing U.S. relationship with the court to include a vital form of support that was previously off-limits. This rapprochement grew out of a highly bipartisan enthusiasm for justice inspired by Russian war crimes in Ukraine, and it marked a well-advised chipping away at decades-old restrictions on U.S. support for the ICC.

Just a few pages later in the statute, though, Congress emphasized the enduring limits of that enthusiasm by renewing its longstanding ban cutting off certain U.S. assistance to the Palestinian Authority if the latter supports an ICC investigation. (See, for example, analysis in Just Security nearly a decade ago.) That ban was triggered by Palestinian support for an investigation that has been underway for years and seems likely soon to produce charges against Palestinian and Israeli nationals – and with them a burst of hostility toward the court itself from some corners of Congress.

The United States should prioritize accountability in the Israel-Palestine context as it has elsewhere. But even if it refuses to do so, it should not destroy an institution that is invaluable to victims, advocates, and governments around the world seeking justice for the worst crimes. The shameful threats that some are now making against the ICC are incompatible with U.S. interests in the rule of law, and with the kind of institutions that are often and increasingly necessary to protect those interests.

Ukraine Prompted a Rapprochement and Support for Justice

The ICC’s prosecutor opened an investigation in Ukraine in March 2022. Ukrainian domestic institutions are investigating the crimes occurring on their territory, but the survivors of Russian abuses, Ukrainian human rights defenders, the Ukrainian government, and dozens of other states have understandably felt that action by the ICC was also vital. The court followed the evidence where it led, bringing charges against top Russian officials for war crimes even as the Russian government threatened missile strikes on the ICC and issued tit-for-tat arrest warrants against court officials.

The ICC’s actions have powerfully reinforced the condemnations of Russia’s conduct and made clear that it will work to vindicate the rights of civilians in Ukraine. The U.S. government and Congress, with strong bipartisan support, welcomed this role for the ICC and set aside longtime legal and policy restrictions to better support it, including through the sharing of evidence with the ICC prosecutor and the loosening of bans on other forms of assistance.

This was not the first time the U.S. government has recognized its interests were incompatible with a policy of shunning the ICC. George W. Bush cast aside a hostile ICC policy to allow the UN Security Council to refer crimes in Darfur to the court in 2005. The Obama administration dropped an objection to the ICC’s ability to investigate without a state’s request when the court offered the only prospect for deterring renewed electoral violence in Kenya. This dynamic keeps playing out because impunity is not just galling to human dignity but also a threat to stability, and independent bodies like the ICC are often essential to addressing that threat.

To that end, congressional leaders recognized that funding was a key weakness for the ICC. Despite a recent budget increase, the court still lacks funds to investigate some situations where national institutions are not providing accountability for mass atrocities. The United States has funded other tribunals but never the ICC, until the appropriations act passed in March of this year made available $5 million for the Trust Fund for Victims (an ICC-linked body that supports survivors through reparations and assistance) and the court itself.

Israel-Palestine Investigation a Test for the United States

Congress was right to offer this support, but it presented a risk, given the foreseeable risk that the United States would shift from a supporter of the court to an enemy on short notice. The possibility of such a Jekyll-to-Hyde transformation was, indeed, already clear in the March funding act.

For the 11th year in a row, Congress told the Palestinian Authority that it cannot receive certain U.S. assistance if “the Palestinians [sic] initiate an International Criminal Court (ICC) judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.” That condition was long ago triggered: following a referral by Palestinian officials in 2018, the ICC has since 2021 been investigating “the situation in Palestine,” covering the acts of any persons in Gaza and the West Bank and of Palestinian nationals elsewhere.

The U.S. government has opposed such an investigation every step of the way. In a gross misuse of its financial sanctions tools that jeopardized the ICC’s ability to function as a whole, the Trump administration in 2020 banned any transactions with the ICC prosecutor and a top aide, citing their moves toward a Palestine investigation and the investigation of post-9/11 U.S. torture in ICC member states, and threatening to “seek the dissolution of the court.” (For additional context, see a statement by former U.S. ambassadors and war crimes prosecutors in March 2020.)

The Biden administration withdrew those sanctions, stressing that U.S. objections “would be better addressed through engagement with all stakeholders.” But some members of Congress have kept alive the threat of sanctions and ending all cooperation, including a group of 12 senators who recently told the ICC prosecutor, “Target Israel and we will target you.” Others have vaguely called on President Biden to “fully implement” a 2002 U.S. law that, most famously, threatens the invasion of the Netherlands if U.S. or allied personnel were arrested by the ICC.

When it comes to Palestinians who seek redress for alleged human rights abuses, U.S. officials have struggled to answer the question, “Where do they go?,” sometimes suggesting that a negotiated two-state solution must come first. Many Palestinians understandably see an independent institution as essential to securing justice, and Palestinian victims, advocates, and affected communities have sought the ICC’s intervention for years. The families of Israelis who were taken hostage by Hamas on October 7 have urged the ICC to prosecute those responsible for those acts.

Many of the grounds that the U.S. government has offered for opposing this investigation are increasingly weak. U.S. officials had previously objected to the Palestine investigation as part of a broader objection to ICC investigations that touched on the actions of nationals of non-ICC member states (e.g., Israelis, Russians, or Americans). But under bipartisan congressional pressure, the Biden administration last year abandoned that wholly unpersuasive position to back the ICC’s probe of Russian crimes in Ukraine.

The Biden administration’s recent remarks (“We oppose…this investigation, and we do not believe it’s within their jurisdiction”) are probably based on the more specific view that Palestine does not “qualify as a sovereign state” able to join the ICC in the first place. The United States was not alone in taking that position, but even some of its closest allies have reversed their opposition in recent months, including the United Kingdom and Canada. Supermajorities of the UN Security Council and General Assembly have either recognized Palestine bilaterally or backed its bid to become a UN member state.

The ICC is a court of last resort. Since the October 7 attacks, all parties in the situation – including Hamas and other armed groups as well as Israeli forces in their response to the attacks – have committed acts that may amount to crimes within the ICC’s jurisdiction requiring investigation. Palestinian institutions have certainly not held Hamas and other armed groups to account, and ICC arrest warrants against leaders from those groups are a near-certainty. U.S. officials have often been quick to assure that Israel’s institutions are capable of holding its own forces to account, but ICC action depends on whether national institutions have in fact investigated the allegations before the court, not on the general strength of a country’s judiciary or law enforcement bodies.

The administration’s own recent assessments have been ambivalent. The State Department recently noted that “Israel does have a number of ongoing, active criminal investigations pending and there are hundreds of cases under administrative review,” but it concluded earlier this year that, in 2023, “Israeli authorities operating in Gaza took no publicly visible steps to identify and punish officials accused of committing human rights abuses.”

Let Cooler Heads Prevail

The world took note as the U.S. government spent the last two years touting a renewed commitment to justice for war crimes and embracing the role of international bodies when necessary. Attacking the court now when it investigates a friendly state’s actions will devastate the U.S. ability to credibly champion human rights and accountability in any forum. Cutting off the new support to the ICC’s Ukraine investigation would betray the interests of survivors and others who are fighting for justice. Sanctions risk having profound and unpredictable consequences on those who work with the ICC, including U.S. citizens. Litigation is also seldom successful at thwarting those full effects, especially for non-U.S. persons. What’s more, the U.S. government’s interest in helping Israel defend itself from attacks like October 7 does not require or justify such steps.

Some U.S. leaders have condemned the threats targeting the ICC. As Senator Chris Van Hollen said about his colleagues’ letter to the ICC prosecutor, “It is fine to express opposition to a possible judicial action, but it is absolutely wrong to interfere in a judicial matter by threatening judicial officers, their family members and their employees with retribution. This thuggery is something befitting the mafia, not U.S. senators.” So far, the Biden administration has similarly rejected “threats or intimidation” against ICC officials.

If opponents disagree with the ICC’s eventual actions, they have options compatible with the rule of law. Individuals who are charged by the ICC can challenge the admissibility of such charges. Their government can investigate the specific charges themselves, as a former senior Israeli official recently proposed creating a special commission to do. If announcing charges or taking other steps at a specific moment would jeopardize talks to secure the release of hostages, governments can say so.

Unlike sanctions, these responses would not risk shuttering an institution that activists for justice around the world – not just Palestinians, Israelis, and Ukrainians but Darfuris and Venezuelans and Filipinos, to name only a few – are working hard to mobilize and support. These responses would also avoid reinforcing the toxic perception that some situations within the ICC’s jurisdiction, and thus some victims, are simply beyond “the edge of the political universe in which the tribunal [is] allowed to function,” as one war crimes prosecutor described an earlier court.

If the ICC’s investigation produces arrest warrants against individuals responsible for crimes against Israeli and Palestinian civilians, the United States should not seek to destroy the court or end support for its investigations. Doing so would harm the legitimate efforts of survivors and advocates around the world to seek a measure of accountability and a way forward.

Image” Prosecutor of the International Criminal Court (ICC) Karim A. A. Khan KC addresses UN Security Council, May 14, 2024 (United Nations)