Written by Davis Hayman

In May 2024, the Prosecutor for the International Criminal Court announced applications for arrest warrants for two Israeli heads of state based on preliminary investigations of the ongoing hostilities in Gaza which began on October 7^th, 2023.¹Applications for Arrest Warrants in the Situation in the State of Palestine, Int’l Crim. Ct. (May 20, 2024), https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arrest-warrants-situation-state. In response, Congress introduced the “Illegitimate Court Counteraction Act”.²Illegitimate Court Counteraction Act, H.R. 8282, 118th Cong. (2024) [hereinafter ICC Bill]. This Bill creates sanctions against any foreign person who directly engages in ICC efforts to “arrest, detain or prosecute” a person protected by the Bill.³Id. at § 3. Though expressly motivated by the United States political support of Israel, these provisions will endanger U.S. participation in international treaties.⁴See, Adam Keith, Sweeping ICC Sanctions Bill Would Harm Victims, U.S. Interests, Just Security (July 17, 2024) https://www.justsecurity.org/97770/icc-sanctions-bill-harm/. Commentators have called the sanctions overbroad.⁵Id. The Bill sanctions those who “provide. . . services” to the ICC: a wide swath of international experts, including Amal Clooney.⁶Id. Similarly, commentators recognize that overreaching sanctions will lead to degradation of relations between the U.S. and key NATO allies, like Belgium.⁷Id. Belgium pledged $5 million to the Palestinian investigation in 2023.⁸E.g., Keith, supra note 4; see, Belgium provides 5m funding to investigate war crimes in Israel and Palestine, Belga News Agency (Nov. 8 2023), https://www.belganewsagency.eu/federal-government-provides-funding-to-investigate-war-crimes-in-israel-and-palestine [hereinafter Belgium Investment]. Any Belgian national living in the US who was associated with the pledge could now be subject to the Bill’s sanctions. This bill will have far-reaching implications on the United States’ place in international diplomacy. The sanctions threaten existing international agreements to which the United States is a party.

Context

The United States has a checkered past when it comes to international criminal law and the ICC.⁹See generally, The US-ICC Relationship, Int’l Crim. Ct. Project, https://www.aba-icc.org/about-the-icc/the-us-icc-relationship/. Animosity for the ICC varies across political lines in the United States.¹⁰See id. The Trump administration threatened sanctions due to the potential ICC investigation into American activities in Afghanistan.¹¹Elizabeth Evenson, US Takes Aim at the International Criminal Court, Human Rights Watch (Sep. 11, 2018), https://www.hrw.org/news/2018/09/11/us-takes-aim-international-criminal-court.  Under the looming possibility of an ICC investigation, the United States National Security advisor threatened legal action against the ICC prosecutor.¹²Id.  The Illegitimate Court Counteraction Act follows through with this threat by sanctioning foreign nationals that assist or participate in an ICC investigation into a protected party.¹³ICC Bill, supra note 2. Protected parties include American government officials or agents of America’s allies that are not parties to the ICC, including Isreal.¹⁴Id. These sanctions require the President to block all transactions involving property owned by qualified foreign nationals.¹⁵Id. Further, this Bill calls for the complete prevention of future visas to these internationals and the immediate revocation of such existing visas.¹⁶Id. at § 3(2). Sanctions of this magnitude pose a threat to the United States’ position on the international stage.

Implications

Imposing the sanctions under the ICC Bill will strain diplomatic affairs between the United States and any of the 123 Rome Statute states.¹⁷See Keith, supra note 4; see generally, Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90, entered into force July 1, 2002. For example, by committing 5 euros to the ICC investigation into Isreal and Gaza, Belgium leaves its nationals in the United States at risk of losing their visa or property.¹⁸ICC Bill, supra note 2. The language of the Bill is ambiguous, leaving room for interpretation the level of ICC activity needed to trigger sanctions.¹⁹See id. These sanctions will affect states which the United States relies on for economic, political and military stability – particularly considering multinational NGOs whose staff could be sanctioned, like the International Federation for Human Rights.²⁰New Evidence of Israeli War Crimes Against Palestinian Detainees Must be Investigated by ICC Prosecutor, Int’l Fed’n Hum. Rts. (Oct. 6, 2022), https://www.fidh.org/en/region/north-africa-middle-east/israel-palestine/icc-investigate-israel-war-crimes-palestine. The current language of the ICC Bill leaves little room for flexibility to determine sanctionable individuals.²¹See ICC Bill, supra note 2. Though the Bill lets the president postpone sanctions for 90 days, it still jeopardizes America’s relations with its allies.²²See id. at § 3(1)(e) This is impractical given the sheer volume of diplomats, professionals and other nationals which can fall under the Jurisdiction of the ICC Bill.²³See id. at § 3(1)(a-b); see Office of Foreign Missions, Dep’t. State. https://www.state.gov/about-us-office-of-foreign-missions/#:~:text=The%20United%20States%20currently%20hosts,of%20diplomatic%20or%20consular%20immunities (detailing over 2,400 foreign missions in the United States).

The undefined nature of this Bill highlights the United States’ volatile relationship with the International Criminal Court. The goal of the Bill is clear: voice the U.S. distain for an ICC investigation into Israel’s conduct in Gaza and halt such an investigation through sanctions.

However, this hardline stance sets the United States up for broad, unpredictable consequences. Sanctions may fall on nationals of states which are critical to United States international diplomacy, such as those involved in NATO or NAFTA. Fallout from this Bill could dramatically change the face of American International legal affairs and change the United States’ position on the global stage — all in the name of preventing ICC investigations. To avoid unintended consequences from sanctions, Congress should amend the Bill to better define which foreign nationals’ activities would trigger the sanctions. For example, the Bill could include language which qualifies which activities on behalf of the ICC would trigger sanctions. By including more specific definitions, United States would better protect itself from damaging its international relations with allies by issuing sanctions for unrelated ICC activities. This would allow the United States to manifest its distain with ICC investigations without putting its alliances with state parties on the line for minimal conduct with the ICC.