• USA passed a House bill moving closer to imposing sanctions on the exactors of the International Criminal Court (ICC) warrant needed to arrest Benjamin Netanyahu and Yoav Gallant.
• Now for a second time in four years, America is looking to sanction the ICC for investigating them and its allies.
The United States House of Representatives passed a bill this past week to impose sanctions on the International Criminal Court, should they investigate, arrest or detain any protected person belonging to America or any of its allies.
The move has caused widespread concern and criticism from human rights groups, who see it as an attack on the ICC’s ability to hold war criminals like Netanyahu and Gallant and other perpetrators of human rights abuses accountable.
Defying International Law
The original Republican-led bill that became the American Service members Protection Act (ASPA), (also known as ‘The Hague Invasion Act’) was originally passed in 2002. It authorises the use of military force to free American citizens detained by the ICC – which the US government argues would pose a threat to US national security.
The recent amendment to the bill, disparagingly called “The Illegitimate Court Counteraction Act” takes things further, by imposing economic sanctions on ICC officials and their families.
Specifically, the sanctions include travel restrictions, asset freezes, and visa bans on ICC officials involved in investigations of US citizens or allies. In addition, the bill authorises the US president to use military force to protect US personnel from ICC arrest.
Such were the circumstances when the ICC Chief Prosecutor was Fatou Bensouda – Karim Khan’s predecessor.
Past ICC Threats
During her time as Chief Prosecutor, Fatou Bensouda was said to have been threatened by former Israeli Mossad Director Yossi Cohen for opening an investigation into Israel for war crimes against Gaza in 2014, which only came to light in recent weeks.
Later towards the end of her term as ICC Chief Prosecutor, in March 2020 Bensouda initiated an investigation into the US government while they were under the Trump administration. The ICC wanted to uncover the level of involvement and activity America had in Afghanistan and whether that could have amounted to war crimes being committed.
The US then threatened the ICC with retaliatory measures over the investigation. Rather than creating a bill to pass into law, President Trump signed an executive order in June 2020, where the US then imposed sanctions on Fatou Bensouda and another senior court official Phakiso Mochochoko in September 2020.
The Biden administration later repealed the executive order and allowed the investigation to continue.
Is the Bill Amendment Justified?
Advocates of the bill argue that it is necessary to protect American soldiers and officials from unfair persecution. They then point to past cases (such as the investigations into Afghanistan) where the ICC has been accused of overreaching its jurisdiction.
When it became clear that a bill was set to be introduced into the House of Representatives, over 120 organisations signed an open letter to Joe Biden citing that the bill was an attack on international justice. More importantly, if countries did not respect the full independence needed by the ICC to operate, it would undermine efforts to hold perpetrators of human rights abuses accountable.
The American Civil Liberties Union (ACLU) also sent out a letter to House Representatives to ‘vote no’ on the bill citing the impact on the First Amendment right of Free Speech, for saying things like ‘arrest Netanyahu for genocide’.
Current president of the United States Joe Biden was initially receptive to sanctioning the ICC as part of a bilateral agreement between Democrats and Republicans. He then reversed his decision, which – one would hope – had something to do with the open letter signed by over 120 humanitarian organisations, including Amnesty International,Human Rights Watch, and the Ukrainian Legal Aid Foundation.
Since the bill was passed in the House of Representatives, Biden has firmly opposed the amendment being written into law and has stated that he would not enforce or act upon it. Unfortunately, a lot of his voter base has turned away from him because of his handling of and America’s involvement in the genocide of Gaza.
Has the ICC Become Superfluous?
The ICC was established in 2002 and has 123 member states, including some Western democracies. As an international tribunal, it is empowered to investigate and prosecute individuals for war crimes, crimes against humanity, and genocide. However, the court has faced criticism from countries for being overly politicised and biased against certain states.
In the open letter sent to Joe Biden, rights organisations have criticised the US sanctions against the ICC as an attack on international justiceand a threat to global human rights. They argue the ICC is a crucial institution for holding individuals and governments accountable for their actions.
Sanctions against its officials send a dangerous message that the US is not committed to upholding international law. It is already hard enough how ineffective the ICC has been in physically obtaining and then exercising the warrants issued in their court.
Next Steps
Though the bill has passed in the House, it now faces a vote in a Democrat-controlled Senate. In the unlikely event that it passes and moves to Joe Biden, there is still a presidential power to veto the bill.
In response to the sanctions, the ICC has condemned the move and reiterated its commitment to independent and impartial investigations. Many ICC officials have stated that they will continue their work despite the threat of sanctions.
The sanctions are likely to have a chilling effect on the court’s ability to investigate and prosecute crimes committed by individuals in the US and its allies. This could undermine the ICC’s legitimacy and make it more difficult to capture and hold perpetrators of human rights abuses accountable.
It also sends a message that America is willing to undermine the very institutions and rule of law, that their own citizens and allies are accountable for and expected to abide by.
The effects of the sanctions on the ICC’s work remain to be seen. In the meantime, rights organisations and international observers alike are sounding the alarm about the potential consequences should Biden sign such a bill into law, and the impact that would have on other leaders in the West who may wish to look at sanctioning the ICC also.
