After months of warnings, the International Criminal Court (ICC) prosecutor announced on May 20 that he was seeking arrest warrants against top Israeli officials and Hamas commanders for alleged crimes in and around Gaza. In response, the U.S. House of Representatives passed the “Illegitimate Court Counteraction Act,” a bill requiring the executive branch to impose targeted sanctions on a wide range of individuals connected to the ICC.
Sanctions on the ICC would hurt U.S. relationships and interests, and the victims of war crimes around the world. The House bill, in particular, is a deeply misguided attempt to stop a war-crimes investigation by using U.S. sanctions against ICC prosecutors, human rights advocates, and democratic allies. But it could become law. The White House opposes the bill, but it has not clearly threatened a veto. Key senators have blocked the Senate foreign relations committee’s work until the bill gets a vote and have proposed attaching it to the must-pass annual defense authorization act.
The bill’s mandatory sanctions scheme is a fundamental mismatch between the purported “offense” and the response. It would require the same financial penalties for ICC investigators as other U.S. laws require for gross violators of human rights and proliferators of weapons of mass destruction. Key members of Congress and commentators have condemned the bill, with some calling it a mafia-like threat to judges, prosecutors, and their family members. But the bill’s full breadth and alarming particulars have been too little spelled out.
If the bill were enacted, it would pit the United States against some of its closest allies by requiring it to sanction their nationals for their work investigating war crimes and other violations. Second, it would make basic human rights advocacy sanctionable under U.S. law in circumstances ranging from Israel and Palestine to the Philippines and Libya. Third, by making it illegal for U.S. persons to transact with many ICC officials, the bill could shut down some of the ICC’s operations that the United States most supports, including in Ukraine. Finally, the bill would require offering this thuggish form of “protection” from ICC scrutiny not just to Israel but a long list of some of the United States’ most authoritarian partners.
The Senate should reject this bill, and the White House should encourage Israeli officials to pursue their objections to the ICC’s scrutiny through legal channels. The ICC officials whom the bill targets should carry on with their work.
Sweeping scope: sanctioning close allied nationals and human rights advocates
The House bill is sweeping. It would require the U.S. government to impose asset freezes and visa bans on foreign persons who conduct or in various ways assist any ICC investigation of U.S. persons or persons from certain allied countries, including Israel. (The bill defines “foreign person” in a way that makes it unlikely that dual-national U.S. citizens would be sanctioned.)
Even if the U.S. government focused only on ICC scrutiny of Israeli conduct and ignored the broader mandate, implementing the bill would require putting a staggering number of allied-country nationals and human rights advocates on the U.S. global financial blacklist, and imposing visa bans on an expansive set of their family members too. In particular:
- Many ICC staff meet the bill’s criteria for mandatory sanctions, having “engaged in or otherwise aided” the court’s investigation of Israeli nationals or “acted… for or on behalf of” someone who has. These include prosecutor Karim Khan (a British national) and other staff in the court’s prosecuting or administrative arms working on the Palestine investigation.
- The three ICC judges (from France, Romania, and Benin) who are considering Khan’s requests for arrest warrants and their staff might soon qualify, depending on their ruling.
- Most of the legal experts whom Khan asked to review his requests are sanctionable for having “provided… services” to the investigation, including British-Lebanese lawyer Amal Clooney.
- Belgium’s recent contribution of €5 million to the ICC, which it initially said was specifically for the Palestine investigation, is presumably a sanctionable form of “financial, material, or technological support.”
- The basic human rights work of documenting and sharing evidence of abuses would be directly sanctionable under the House bill, if that work were done by a non-U.S. NGO in support of the ICC’s Palestine investigation – or, as noted below, its investigation in the Philippines.
- Even witnesses who testified to the prosecutor could be considered to have “aided” an effort to investigate Israeli or other allied-country nationals.
- For each person sanctioned, the bill further requires a U.S. visa ban on their “immediate family members.” This requirement is inappropriately copied from sanctions targeting foreign officials involved in corruption or gross human rights violations – and the House bill goes even further, covering not only spouses and children but parents and siblings too.
There are practical, bureaucratic limits on how many people the U.S. government can sanction in a day, of course, as well as opportunity costs of using that capacity to fulfill this mandate instead of others. This reality and the bill’s (extremely narrow) waiver provision might limit the damage it would do, though not in any reliable or consistent way. The United States might not choose to prioritize sanctioning human rights NGOs, for example, but the Palestinian, Israeli, European, and Filipino advocates that have supported these investigations would have little assurance of that.
Regardless of their nationality, no ICC staff or human rights defenders should be sanctioned for their legal work and advocacy. But the House bill is especially striking as a mandate to sanction dozens of nationals from close, democratic U.S. allies. Unlike U.S. sanctions on allied-country nationals involved in corruption, which have often been impactful, U.S. partners would rightly see these sanctions as targeting international civil servants and human rights advocates doing their legitimate jobs. The United States would be acting alone, demanding that British, Dutch, and other banks with exposure to the U.S. financial system make law-abiding citizens pariahs and cut them off from their own funds.
Even the Trump administration took seriously the diplomatic downsides of targeting individuals from close allies when it briefly sanctioned two ICC officials in 2020, albeit to racist effect. It skipped over a senior Canadian national and others in the ICC prosecution’s then-chain of command to target two African officials, perhaps anticipating that any objections from their home states (the Gambia and Lesotho) could be shrugged off. For better and worse, the House bill does not provide such flexibility in the diplomatic fights it would require the U.S. government to pick.
Creating vast liability beyond those specifically sanctioned
The sweep of U.S. financial sanctions is amplified by the risk of follow-on enforcement action, in which the U.S. government can impose criminal and civil penalties on U.S. persons and others who interact with sanctioned people in ways that have even a fleeting connection to the United States. In this way, the House bill would attack even U.S. citizens and advocates and paralyze elements of the ICC’s work that enjoy overwhelming bipartisan support.
Again, even assuming the U.S. government could ignore the bill’s broad mandate and sanction only the ICC prosecutor himself, much of the ICC’s basic operations – and much of civil society’s advocacy toward the court – consists of interactions that could be penalized as support to the prosecutor.
The ICC has several U.S. citizen employees, including most prominently Brenda Hollis, the widely respected former U.S. Air Force judge advocate who stood behind Karim Khan at the May 20 announcement as one of his deputies on the Palestine file. Hollis and other Americans cannot be sanctioned under the bill, but working for a sanctioned Khan would expose them to enforcement penalties – even for work on the ICC’s Ukraine investigation, which Hollis leads, or others that the bill does not attack. Similarly, U.S. human rights NGOs or individual advocates could face enforcement penalties for supporting any of the sanctioned prosecutor’s investigations, from Ukraine to Darfur.
More broadly, the ICC is a complex institution with 900 employees and field offices in seven countries from Ukraine to Uganda. Many of its vendors, insurers, and other business service providers are presumably companies that fall under U.S. jurisdiction or comply with the U.S. sanctions list as a precaution. It was difficult enough for the ICC to remain “in business” when only two of its staff were sanctioned in late 2020, by an administration that lost reelection just weeks later.
If multiple ICC officials were sanctioned, based on a permanent law, companies would be far more reluctant to keep navigating the risks of doing business with the court. If it became impossible to clearly distinguish between a business transaction that benefitted sanctioned persons and one that did not, it could easily become impossible for the court to continue any of its investigations.
Some legal defenses could be raised at the margins. When the Trump administration’s sanctions on the previous ICC prosecutor were in place, for example, one set of U.S. citizen advocates who had advised the ICC secured a preliminary injunction allowing their work to continue, having persuaded a judge that the threat of enforcement penalties infringed on their free speech rights. There is no guarantee, though, that other judges would rule in the same manner under a new sanctions program – and not all transactions with the court are expressive in nature.
A long and arbitrary “do not investigate” list
The authors of the House bill did not limit their ambitions to pressuring the ICC out of its Palestine investigation, but rather sought to require this kind of sanctions onslaught in response to any ICC investigation of any “protected person.”
The bill defines “protected person” to include any citizen or lawful resident of not just the United States and Israel, but nine other mostly authoritarian U.S. allies and partners that have not joined the ICC (Bahrain, Egypt, Kuwait, Morocco, Pakistan, Qatar, Thailand, and Turkey) or that joined but later withdrew (the Philippines). The bill states that the United States “must oppose any action by the ICC” targeting people from or living in this set of U.S. allies, but it leaves oddly unstated why this would be so.
One possible reason for demanding that these specific countries not be investigated: the U.S. government has previously objected to the ICC’s ability to investigate the nationals of ICC non-member states for their role in crimes committed on the territory of countries that have accepted the court’s jurisdiction.
But Congress quite specifically demanded that the executive branch abandon this unfounded objection to the court’s territorial reach, so that the United States could support the ICC’s investigation of Russian war crimes in Ukraine. It began doing so last year. If forces from any of these allied countries commit war crimes on the territory of a country where the ICC has jurisdiction – say, Egypt’s armed forces in neighboring Libya – it would make no more sense to come to their defense by sanctioning the court than it would to do so for Russia.
Another possible reason for warning the ICC off of these “protected” states: the House thinks the court should presume that these governments will hold their own forces accountable, as U.S. legislators have said regarding Israel in demanding that the ICC defer to investigations that may be under way there. But the covered states include near-absolute monarchies like Bahrain and military dictatorships like Egypt that make scant pretense of holding their officials to account.
Rather, the motivation and the logic behind the bill seem simply to be that of Benavides (“For my friends, everything; for my enemies, the law”), with the understanding that impunity should be formalized as a benefit the United States extends to some of its major non-NATO allies.
Bizarre results from expansive drafting
Because of its carelessly vast reach, this bill would produce particularly strange outcomes well beyond opposition to ICC scrutiny of Israel.
Ismail Haniyeh, one of three Hamas leaders whom the ICC prosecutor wants to charge, has lived in Doha for years – and if he is a lawful resident of Qatar, this bill would make him a “protected person” and make it sanctionable to assist an ICC investigation of him. That would presumably surprise advocates and NGOs that shared documentation of the October 7 attacks with the ICC and made no exception for Haniyeh when asking it to hold Hamas leaders to account.
Khalifa Haftar is best known as the leader of a Libyan militia that has committed a variety of abuses, including executions of prisoners that have already led the ICC to charge one of his lieutenants (now deceased) with war crimes. Because Haftar also holds U.S. citizenship, though, the bill would make it sanctionable to conduct or support an ICC investigation of him.
The bill would also make it sanctionable to conduct or support the ICC’s ongoing investigation into extrajudicial drug-war killings in the Philippines, even though that country joined the court in 2011. The Duterte government’s withdrawal from the ICC in 2019 made the Philippines once more “an ally of the United States that has not consented to [ICC] jurisdiction or is not a state party to the Rome Statute,” such that ICC scrutiny of people in or from the Philippines would be sanctionable under the bill.
Some specific elements of the diplomatic self-harm and impunity promotion that the House bill would cause might be avoided by a narrower bill, but not all of them. Even a narrower bill could provide cover or endorsement for a hostile executive branch to misuse existing sanctions authorities to attack the ICC – and the correct number of people to face U.S. sanctions for the ICC’s Palestine investigation, or any other lawful effort to provide accountability for serious crimes, is zero.
U.S. allies and partners, human rights advocates, and others who expect the United States to preserve any claim to being a supporter of justice and accountability should press Congress not to follow this course.