US Senate blocks bill sanctioning ICC over Israeli arrest warrants

Democrats in the U.S. Senate blocked the passage of a bill aimed at sanctioning the International Criminal Court (ICC), which stemmed from the ICC issuing arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, accusing them of war crimes in Gaza. Tuesday's vote was 54 in favor and 45 against, failing to reach the 60 votes needed to advance to a final vote.

UN experts, European officials, and current and former presidents of the ICC's governing body have publicly opposed the bill, warning that it would set a dangerous precedent at a time when the international legal order is increasingly important. However, many Democrats who voted against the bill still accuse the court of acting unfairly against Israel by issuing arrest warrants for Netanyahu and Gallant. Simultaneously, the court also issued an arrest warrant for Hamas commander Mohammed Deif for his involvement in the October 7, 2023, attacks on southern Israel. The ICC denies any bias in its actions.

Before the vote, Democratic leader Chuck Schumer in the Republican-controlled Senate stated that he "basically supports" the sanctions bill and would like to see it become law. "However, while I oppose the ICC's bias against Israel and while I would like to see the institution thoroughly reformed and reshaped, the draft bill before us is poor and has many problems," he said, arguing that the bill could harm US allies and businesses that have dealings with the court. He called on Republicans to return to the negotiating table and revise the language in the legislation.

Senate Majority Leader John Thune, a Republican, spoke in favor of the bill on the Senate floor, stating that actions against "close American allies" should concern everyone. "While the ICC is targeting Israelis today, it could easily turn its sights on Americans," he said. Senator John Fetterman was the only Democrat to vote in favor of the bill. He quickly won praise from the American Israel Public Affairs Committee (AIPAC), a highly influential pro-Israel lobbying group. The organization posted on social media platform X thanking Fetterman for "principled pro-Israel leadership and standing with Israel against the ICC's baseless attacks."

In the past, President Donald Trump took a hard stance against the ICC, imposing sanctions on court officials in 2020 over concerns that the court was investigating US military actions overseas. Former President Joe Biden's administration later revoked the order, but Trump reversed Biden's decision after taking office last week. His move is symbolic thus far, as reversing the decision does not automatically reinstate the sanctions. Neither the US nor Israel are parties to the Rome Statute, which established the ICC. However, the court argues that Israeli officials could be held accountable for their actions because the alleged war crimes occurred in Gaza. The State of Palestine has been a member of the ICC since 2015.

The court used a similar argument when issuing arrest warrants for Russian officials for alleged abuses in Ukraine, a move that was praised by US officials at the time. Russia is not a party to the ICC, but Ukraine is. In issuing the arrest warrants for Netanyahu and Gallant, ICC prosecutors argued that Israel's restrictions on aid to Gaza, including water and medicine, amounted to using starvation as a method of warfare. The two Israeli officials are also accused of crimes against humanity, including murder and persecution, as well as war crimes for directing attacks on civilians. To date, Israel's war in Gaza has resulted in the deaths of 47,354 Palestinians and displaced nearly the entire population of the region. A fragile ceasefire has been in place since January 19.

The ICC had also previously sought arrest warrants for Hamas political leader Ismail Haniyeh and its top leader in Gaza, Yahya Sinwar, before the two were killed in Israeli attacks. Earlier this month, UN experts called on the US Senate to reject the bill after it passed in the Republican-controlled House. "It is shocking that a country that prides itself as a defender of the rule of law is attempting to obstruct the actions of an independent and impartial court established by the international community to prevent impunity," the experts said. They added that threats against the ICC "fuel a culture of impunity."

In an article published Monday by the Just Security website, current and former presidents of the Assembly of States Parties to the ICC (the body that governs the court) warned that sanctions could "severely impede" at least 20 investigations worldwide. "While challenges remain, we are committed to the ICC’s vision of justice and its mission to ensure that no one is above the law, no matter how powerful," they wrote. "Efforts to undermine the ICC are an assault on the principle of legal protection for the weak against the strong."