Can US sanctions against ICC derail probe into Israel’s war crimes?

Last week, the United States passed a bill aimed solely at shielding Israeli leaders from arrest for their role in the unfolding genocide of Palestinians for the past 15 months.

The bill – which proposes sanctions on the International Criminal Court (ICC) in retaliation to the arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant – was introduced amid a power shift in the US Congress, with Republicans taking control of both houses.

Ashish Prashar, political strategist and a former adviser to the UK's Middle East peace envoy, argues that the US move demonstrates troubling double standards in applying international law.

“The West has basically proved in the last week, beyond a shred of doubt, that international law was never meant to hold them accountable,” Prashar tells TRT World.

“They've made that clear in the past, that international law is for African dictators and Russia to go after, even though the West has committed massacres, war crimes and genocides multiple times over.”

The bill, called the Illegitimate Court Counteraction Act, now heads to the Senate for approval. It proposes sanctions on those who aid efforts by the ICC to prosecute Americans or Israelis.

The sanctions would include freezing property assets and denying visas to any foreigners who materially or financially contribute to the Court’s efforts.

The proposed sanctions came despite a growing consensus among international bodies and experts regarding the nature of Israel’s war crimes in Gaza, described by the ICJ as genocide in its provisional ruling.

Prashar notes that the US would not hesitate to label such actions as genocide if it served its interests.

He drew a parallel with Sudan, where the paramilitary Rapid Action Forces (RSF) has been accused of genocide by the Biden administration.

“(But) the US is just not going to ever call this (the Gaza massacres) a genocide,” Prashar says.

By targeting Israel’s top leadership last November with its historic arrest warrants, the ICC has set the stage for broader accountability mechanisms.

Military officials, corporate entities, and other actors complicit in Israel's systematic crimes may now find themselves under legal scrutiny.

Nations bound by the Rome Statute or ICC Act can exercise universal jurisdiction to prosecute individuals, including political leaders and military personnel, for aiding in genocide or crimes against humanity. This jurisdiction applies regardless of where the crime was committed or the nationality of the accused or victims.

The first instance of such enforcement occurred last week.

In a historic move, a Brazilian court directed police to investigate an Israeli soldier accused of war crimes in Gaza.

The court’s order for urgent investigative action represents a landmark example of a Rome Statute signatory applying its provisions at the domestic level.

“What I would suggest for international lawyers is to take the model that recently was applied in Brazil and charge people under international law for war crimes, for crimes against humanity, in their domestic courts,” Prashar adds.

Will sanctions change West’s stance?

Following the proposed US sanctions on the ICC, many Western countries, including the UK, France, Germany, and Poland, are likely to align with Washington.

“I think we'll get a handful of the same people, the same governments who consistently have denied this genocide, have armed this genocide, who will not follow this,” Prashar says.

“Now, it's up to European allies to grow a spine and actually stand up to the US and say, no, we believe in international law.”

Washington has historically posed significant challenges to the ICC, actively opposing the Court when it investigates war crimes involving US personnel or allies, such as Israel.

This pressure tactic has included imposing sanctions on ICC officials and lobbying member states to withdraw support from investigations deemed unfavourable to US interests.

Revelations have detailed years of surveillance and espionage by Israeli intelligence targeting Court officials.

The US previously sanctioned former ICC prosecutor Fatou Bensouda and other ICC staff under the Trump administration over the Court's investigations into war crimes by Washington in Afghanistan and its ally Israel in the Palestinian territories.

Notably, Bensouda received direct threats from Mossad’s leadership, warning her against pursuing cases that could endanger her safety or that of her family.

While the Biden administration later lifted these sanctions, the current move to reintroduce them against the court raises significant legal and ethical questions.

Overt political opposition has also intensified.

In April 2024, a group of US Republican senators issued a warning to current prosecutor Karim Khan, threatening sanctions against him, ICC officials, and even their families should the warrants proceed.

“The ICC and the judges knew…that they would be sanctioned, they would be punished, that they would be attacked for issuing these arrest warrants,” Prashar says.

“The US doesn't want any accountability for Israel or itself, frankly, for these war crimes, because Israeli accountability means US accountability, because it provided all the support, political and militarily, for Israel to commit this genocide.”

However, the US sanctions are unlikely to derail the ICC’s investigation, though these measures might create operational hurdles, such as freezing US-based assets or making financial institutions wary of handling ICC transactions.

When the US previously ran an anti-ICC campaign targeting its prosecutor and staff, it faced widespread global condemnation. No Western democracy or US ally, except Israel, backed the campaign.

This time, the backlash could be even stronger, particularly in Europe, where US overreach may shift the focus from legitimate critiques of the ICC to Washington’s obstruction of justice.