US Must Uphold Accountability for All at ICC
IMEU Policy Project Memo #9
On May 20, International Criminal Court (ICC) Prosecutor Karim Khan announced the filing of applications for arrest warrants of Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant, along with Hamas leaders Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh on charges of war crimes and crimes against humanity.
Speaker of the House Mike Johnson announced that he is pursuing bipartisan legislation to sanction the ICC. Testifying before the Senate Appropriations Subcommittee on State, Foreign Operations, and Related Programs, Secretary of State Antony Blinken stated that he welcomed the opportunity to work with Congress on a bipartisan basis to sanction the ICC.
Topline
Neither Congress nor the Biden administration should sanction the ICC because:
Obstructing the ICC from pursuing accountability for those charged with war crimes and crimes against humanity compromises the stated commitment of the Biden administration and Congress to center human rights in US foreign policy.
Condemning the ICC for seeking to hold Israeli leaders accountable for their actions demonstrates blatant hypocrisy as President Biden felt the ICC’s arrest warrant for Russian President Vladimir Putin was “justified”. If Russian leaders should be held accountable for their war crimes and crimes against humanity in Ukraine, then so too should Israeli leaders for their actions in the Palestinian Gaza Strip.
Reimposing sanctions on the ICC, as was done through Executive Order by President Trump, would further the Biden administration’s process of eviscerating the post-World War II global human rights rules-based order through its vigorous support for Israel’s manifestly illegal actions in Gaza.
The ICC is seeking to hold all actors accountable for their actions. Applying the same set of standards to all is moral, legal, and political consistency, not an equivalency as claimed by the Biden administration and some Members of Congress.
Contrary to the false assertions of the Biden administration and some Members of Congress, the ICC does have jurisdiction to seek accountability for actions committed in Occupied Palestinian Territory by virtue of the State of Palestine’s acceptance of the ICC’s jurisdiction and its accession to the Rome Statute in 2015.
Details
The Palestine Liberation Organization (PLO) sought full membership in the UN in 2012 in large measure to join international bodies such as the ICC. The Obama administration used the threat of US veto power in the Security Council to block Palestine’s full membership; however, the General Assembly overwhelmingly voted to make Palestine a permanent non-member observer state. This status nevertheless enabled Palestine to join international bodies.
In 2015, the State of Palestine accepted the ICC’s jurisdiction and acceded to the Rome Statute. These acts gave the court jurisdiction over actions committed in the Occupied Palestinian Territory of the West Bank, including East Jerusalem, and the Gaza Strip. In 2018, the State of Palestine referred to the prosecutor a request to investigate actions by Israel contrary to the Rome Statute, including through its construction of illegal settlements in the West Bank and its blockade of and previous attacks against Palestinians in the Gaza Strip. The ICC has been conducting an investigation into this referral since 2019 and announced in November 2023 that its investigation would extend to acts committed since October 7.
The ICC’s investigation of Israel was the primary reason for President Trump imposing sanctions against the ICC in 2020. In Executive Order 13928, the US revoked the ability of ICC officials and family members to enter the US and blocked the property of foreign persons who assist the ICC with investigating the actions of US allies.
Shortly after taking office, President Biden rescinded Trump’s Executive Order. In Executive Order 14022, issued in April 2021, Biden argued correctly that sanctioning the ICC was “not an effective or appropriate strategy”. The Biden administration has offered no convincing reasons as to why the US should now reinstate Trump-era sanctions against the ICC.
The reimposition of ICC sanctions would be nothing less than a blatant and hypocritical effort to pressure the court to not hold Israeli officials accountable for their actions even as the Biden administration has viewed the court as a vehicle to hold other perpetrators of war crimes and crimes against humanity accountable for their actions.
While it is unclear at this point what legislation Speaker Johnson will bring to the floor, it might be H.R.8282, introduced by Rep. Chip Roy (full text here), and currently cosponsored by 52 Republicans, or a modification thereof. H.R.8282 seeks to reinstate the Trump-era sanctions against the ICC. Sen. Tom Cotton introduced a companion bill–S.224–in the Senate, which currently has three Republican cosponsors.
However, some Members of Congress have supported the ICC holding Israeli leaders accountable for their actions. For example, Sen. Bernie Sanders stated: “The ICC prosecutor is right to take these actions. These arrest warrants may or may not be carried out, but it is imperative that the global community uphold international law. Without these standards of decency and morality, this planet may rapidly descend into anarchy, never-ending wars, and barbarism.”
For further information, please see these publications from our affiliated organization the Institute for Middle East Understanding:
Accountability for Russia, Impunity for Israel in US Policy | IMEU Policy Analysis #6
Why Israel Must Be Held Accountable for Policies toward the Gaza Strip| IMEU Policy Analysis #4
Photo credit: Flickr/jbdodane. Creative Commons license.