(Editor’s Note: This article is part of our new symposium on the ICC and the Israel-Hamas war. Listen to the author and other top experts discuss the ICC Prosecutor’s request for arrest warrants related to the Israel-Hamas conflict on the Just Security Podcast here.)

Shimon Peres famously said that if a problem has no solution, it  is not a problem, but a fact – not to be solved but to be coped with over time. So it is with the U.S. reaction that has already begun to unfold to the International Criminal Court Prosecutor’s announcement on Monday that he is seeking arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav GallantThat there will be a reaction within the United States is inevitable.  That the reaction will be strong was already amply clear in the run-up to the Prosecutor’s announcement, as news accounts emerged that such a request would be forthcoming.  House Speaker Johnson called the idea of such warrants “disgraceful” and warned that “[t]he Biden Administration must immediately and unequivocally demand that the ICC stand down and the U.S. should use every available tool to prevent such an abomination.” Twelve U.S. Senators, including the Minority Leader, wrote to the Prosecutor that:

If you move forward with the measures indicated in the report, we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned. 

If any greater clarity were needed that the reaction would be strong, both Secretary of State Antony Blinken and President Joe Biden delivered scorching public statements within hours of the Prosecutor’s announcement, with the President calling the Prosecutor’s move “outrageous” and with the Secretary calling the Prosecutor’s “equivalence” of Israel with Hamas “shameful” and saying that “deeply troubling process questions … call into question the legitimacy and credibility of this investigation.” 

Although the ICC Prosecutor may have thought that simultaneously announcing that he was seeking arrest warrants for Yahya Sinwar and two senior leaders of Hamas’s military and political wings – for war crimes and crime against humanity includingcharges of extermination, rape and other acts of sexual violence, torture and other outrages – would dampen the reaction, it had the exact opposite effect.  The fact that the Prosecutor, undoubtedly deliberately, advanced no claim of genocide against Israel — a fact that could be expected to eventually advantage Israel in its case against South Africa in the International Court of Justice — will be seen in Washington as less important than his failure to assert such a claim against Hamas, as to which the charge that it has acted with genocidal intent seems self-evident.

The Strategic Importance of International Criminal Justice 

What does all this mean for U.S. policy at a practical level? In the first place, , there is no escaping the profound interests – both moral and tangible — that the United States has had, and continues to have, in promoting justice and accountability.  On numerous occasions, U.S. officials have taken time to remind their audiences that the United States played the decisive role in establishing the tribunals at Tokyo and Nuremberg and Tokyo —  among “the most significant tributes that Power has ever paid to Reason.” The United States was the prime advocate in the Security Council debates that produced the Yugoslavia and Rwanda tribunals that stand as forefathers to the International Criminal Court and was in fact an early supporter of a permanent international criminal tribunal. And notwithstanding its concerns about the Court, the United States played a significant role in shaping the ICC’s Elements of Crimes and its Rules of Procedure and Evidence as well as in helping in its investigations. 

The role of the United States in developing and promoting international criminal justice reflects neither misplaced idealism nor cynical opportunism.  An environment in which atrocities can be perpetrated with impunity is inherently destabilizing and, as we have witnessed all too clearly in places like Syria, can contribute to the spreading of conflict, massive migration flows, economic devastation, and the diffusion of violent extremism. 

This has been recognized across party lines and has been a feature of the national security strategies of both Republican and Democratic administrations, including those of Presidents: 

  • Bush: “The world must act in cases of mass atrocities and mass killing that will eventually lead to genocide even if the local parties are not prepared for peace;”
  • Obama: “From Nuremberg to Yugoslavia to Liberia, the United States has seen that the end of impunity and the promotion of justice . . .  are stabilizing forces in international affairs;” 
  • Trump: “We will hold perpetrators of genocide and mass atrocities accountable;” and
  • Biden: “[P]reventing future genocides remains both our moral duty and a matter of national and global importance.” 

This reality is also  baked into U.S. legislation, including what has become routine congressional affirmation that it is U.S. policy to regard “the prevention of atrocities as in its national interest.”  That understanding reflects our shared remembrance of the lessons of the Holocaust, and our moral duty, as well as our tangible interests, in doing whatever we can to prevent any repetition.  

The Political Environment Needed for the U.S. to Support the ICC

All that said, support for international criminal justice does not translate automatically into support for the ICC, and the reaction we have already seen to the Prosecutor’s announcement on seeking arrest warrants leaves little doubt that we are facing the elimination of vast swaths of the political “space” that has allowed the United States to proceed in a way that recognizes how directly valuable the great bulk of ICC activities are for U.S. foreign policy objectives. 

In this regard, it is worth recalling the report published three years ago by the Task Force commissioned by the American Society of International Law (ASIL) – a Task Force that I had the privilege to co-Chair with now-Ambassador for Global Criminal Justice Beth van Schaack — for the then-incoming Biden Administration on Policy Options for U.S. Engagement with the ICC.  A basic tenet of that report was “the simple political truth” that it was “big picture” agenda items that determined how much political space existed for a constructive U.S. relationship with the ICC.  At the time of the report, the “big picture” was dominated by the fact that the ICC Prosecutor had opened an investigation of the situation in Afghanistan – an investigation that encompassed allegations against U.S. persons involved in the Bush Administration’s enhanced interrogation program.  This reality left little political space for providing support to other ICC investigations and prosecutions.

It was only after the fall of Kabul in August 2021 that the then-new ICC Prosecutor – the very same man who on Monday announced the Israelii arrest warrants, Karim Khan – re-opened the political door by essentially announcing that he was no longer pursuing the torture allegations against U.S. persons but rather would turn his attention to allegations against ISIS and the Taliban.  One can agree or disagree with the Prosecutor’s decision on Afghanistan – and, indeed, many human rights organizations and other advocates criticized it harshly – but there is no question as a political matter that the Prosecutor’s signal paved a political path for a more constructive relationship with the United States. 

Not long thereafter, an even bigger picture development changed the landscape even more profoundly when, within days of Russia’s full-scale invasion of Ukraine in February 2022 – the ICC Prosecutor announced that he would seek authorization to commence a formal investigation of the Situation in Ukraine that would focus on allegations of Russian atrocities.  That was quickly followed by an ICC Pre-Trial Chamber granting the Prosecutor’s request to issue arrest warrants for Russian President Putin – as well as for his Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova – on charges of unlawfully transferring children to Russia from occupied areas of Ukraine.  All of a sudden, the ICC’s most prominent case was directly aligned with a paramount objective of U.S. foreign policy in opposing Russia’s invasion, and in addressing the war crimes that the United States was accusing Russian forces of committing.

The turnaround in attitudes toward the Court was remarkable, with Congress affirmatively stepping in to adopt several pieces of legislation to extol the virtues of the Court, facilitate tangible U.S. assistance to support its investigations, and help fund the Court’s activities. The overarching principle was clear as the legislation underscored the importance attached by the U.S. Government to efforts to ensure that those responsible for atrocities in Ukraine are brought to justice.  In the words of Senator Lindsey Graham (R-SC):  “I didnʼt think it was possible but [Putin] did it — and thatʼs for him to rehabilitate the ICC in the eyes of the Republican Party and the American people.” 

Regrettably, the importance of these two remarkable events will now fade and the political landscape – the prism through which policymakers see ICC issues – will be dominated by the Prosecutor’s announcement  that he was seeking arrest warrants for Israeli leaders.  It is hard to know exactly where this will lead.  But already there is a push for sanctions legislation – something that mirrors the visa restrictions and IEEPA Executive order that had been imposed under the Trump Administration, along the lines of the “Illegitimate Court Counteraction Act” introduced by Senators Tom Cotton (R-AR), Ted Cruz (R-TX) and Marco Rubio (R-FL), if not even more aggressive measures.

A Repetition of Sanctions Would be a Serious Mistake 

I have no illusion that the U.S. reaction will be anything but strong, nor is my point to argue  that it should be. But I humbly submit that the imposition of such sanctions would be a mistake of classic proportions. Sanctions are a tool normally reserved for terrorists, proliferators of weapons of mass destruction, narcotics traffickers and perpetrators of the most heinous atrocities.  

Thinking back to the seemingly endless number of foreign government officials, civil society members, and others that we interviewed in the course of our research for the ASIL Task Force report, it would be hard to overstate how powerfully the imposition of such sanctions against the ICC was seen as an affront to basic values, and how negatively the imposition of such sanctions affected the views of friends and allies toward the United States.  The sanctions and the accompanying threats fundamentally undermined their confidence in the commitment of the United States to broader issues of human rights and the rule of law. It was widely observed that the sanctions made it more difficult to pursue reforms of the ICC system then under consideration by the Rome Statute parties that would have been in the interests of the United States, and it undermined the willingness and ability of traditional friends and allies to work with the United States as a responsible international partner in other contexts.  

Simultaneously, the resort to such brutish tactics created an impression that the United States lacked a reasoned basis for its positions. The imposition of sanctions was seen as aligning the United States with despots keen on undermining justice and rule of law efforts in their own countries. Amidst global democratic backsliding, billigerently threatening an independent tribunal is not a good look for a country that holds itself up as the leader of the free world. 

It only made matters worse that the sanctions had an impact opposite of what the United States wanted.  Allies and friends felt compelled to rally to the Court’s defense, and to avoid taking up causes that would have advanced U.S. interests in ICC in the ICC review process  that the Rome Statute parties had undertaken.  The use of such tactics by the United States left Court actors feeling virtually compelled to avoid steps that would be seen as succumbing to U.S. pressure.  

The “Exit Ramp Elimination Act”

Given this experience, such sanctions legislation directed at the Court today might well be re-titled the “Exit Ramp Elimination Act.” Adopting this type of legislation might in some sense feel good — in the way that pounding your chest can feel good — but I see no realistic line from adoption of such legislation to ending up with the results that the United States would want. 

The United States Has Better Options

To be sure, in the clamor for a strong reaction, the political climate on these issues will compel U.S. officials to confront uncomfortable issues.  

We can glean an early example of this in the portion of Secretary Blinken’s statement that criticizes “the Prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed.” At its nub, this statement is raising questions about the way the Court has applied the principle of complementarity. Other issues to address may well include: head of state immunity, the mere “reasonable grounds to believe” as a standard for issuing international arrest warrants for senior government officials, questions about the substantive content of international humanitarian law and more. All are fair game for discussion in a serious manner, taking into account the full range of considerations that ultimately affect the United States, Israel and the international community more generally.  There are ample opportunities to raise these issues – including potentially in diplomatic channels, in public discussion, and before the Court itself including at relevant stages of Court proceedings, and before the ICC Assembly of State Parties. 

In sorting through the issues, U.S. policymakers will need to ask themselves: how much linkage is actually in U.S. interests. Is it, for example, suddenly no longer to the advantage of the United States to support the work of the ICC in investigating and prosecuting the perpetration of atrocities in Ukraine?  Do we want to enable Russia to point at U.S. sanctions as a ready model to justify the sanctions that it has imposed against the Court?  Is the United States now going to renounce President Bush’s conclusions about the importance of accountability for the perpetrators of atrocities in Darfur, and that it is now less important to end impunity in Darfur than to press U.S. concerns about the ICC’s jurisdictional regime? 

At this moment, it is worth recalling another central tenet of the ASIL Task Force report: that U.S. policy toward the ICC can only make sense if it fits with, and contributes to, the overall U.S. approach to diplomacy and cooperation with allies and other friends.  This truism points to the bottom line here.  Yes, there is a reaction coming, and we may as well think of that as a fact not a problem. And yes, the reaction will be strong.  But the fact that the reaction needs to be strong does not relieve policymakers of the responsibility to think beyond the emotion of the moment, carefully assess the actual impact of the steps they are considering, and take into account the full and deeper range of interests that are at stake. 

IMAGE: U.S. Secretary of State Antony Blinken arrives for a Senate Foreign Relations Committee hearing on Capitol Hill on May 21, 2024, in Washington, D.C. (Photo by Kent Nishimura via Getty Images)