Dear Congress: If You Value National Security, Do Not Sanction the ICC

After several months of deliberation, the Pre-Trial Chamber of the International Criminal Court (ICC) issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for war crimes and crimes against humanity in Palestinian territories. In anticipation of this decision, several members of the U.S. Congress threatened the court with sanctions. Sen. John Thune (R-S.D.), for example, posted on X: “If the ICC and its prosecutor do not reverse their outrageous and unlawful actions to pursue arrest warrants against Israeli officials, the Senate should immediately pass sanctions legislation.” Members of Congress are now under extreme pressure from Israel-backed lobbyists and other ICC detractors to sanction the world’s one judicial body dedicated to holding individuals accountable for the most serious crimes of concern to the international community. 

Congress, however, should think carefully about the consequences of such punitive measures. Even though the U.S. is not a member of the ICC, sanctions against the court’s personnel and those who support its work, including asset freezing and travel restrictions, would hinder the ICC’s ability to pursue its mandate. For example, sanctions would prevent American businesses from providing products and services to the court, inhibit investigators from interviewing witnesses in certain countries, and deter civil society groups from sharing essential evidence that prosecutors need to build their cases. 

Global justice institutions like the ICC have been an integral part of the international security framework since the Nuremberg and Tokyo tribunals after World War II. These novel innovations paved the way for a sustainable peace in Germany and Japan, which enabled the U.S. to form vital military and business partnerships. In the same way, the International Criminal Tribunals for the former Yugoslavia and Rwanda in the 1990s led to long periods of stability and economic growth in these regions. If given the opportunity and freedom to pursue its mandate, the ICC could provide similar benefits today by bringing justice to victims of international crimes in numerous countries and conflicts around the world.

In the face of growing transnational threats, the ICC has a particularly critical role to play in international and national security. Sanctioning the ICC would undermine its work across the globe and, in doing so, damage a valuable tool for combating emerging threats.

ICC Mandate and Jurisdiction

The ICC’s mandate is to investigate and, where appropriate, try individuals accused of committing the most serious international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

While the conflict in Gaza is the focus of media attention in the United States, that investigation makes up only a small fraction of the ICC’s work. The ICC Office of the Prosecutor currently has 16 open investigations, only two of which are objectionable to U.S. government officials—the investigation of allegations against American military contractors in Afghanistan (which the current prosecutor deprioritized when he entered office) and the investigation of Israeli officials for alleged international crimes in the State of Palestine, which has spurred this latest round of attempted intimidation of the court. 

The other 14 investigations are aligned with U.S. interests or are otherwise so unobjectionable that U.S. officials do not speak out against them. In fact, the U.S. government has supported several ICC investigations by, for example, overtly praising the investigation in Ukraine, abstaining from exercising its Security Council veto power to refer Libya and Sudan to the court (thus showing tacit approval), and providing assistance for several other investigations by offering rewards, facilitating arrests, and sharing evidence. Blanket sanctions would halt this assistance and obstruct these ongoing investigations, while Gaza-specific sanctions, as was proposed in the Illegitimate Court Counteraction Act, might have a lesser, yet significant negative impact.

In stark contrast to how it is represented by some U.S. officials, the ICC’s jurisdiction is narrow and specific, limited only to the most serious of international crimes and to the territory and personnel of its 124 states parties, with two exceptions—a self-referral by a non-state party or a referral from the UN Security Council. The ICC has sought to exercise jurisdiction over citizens of non-states parties only on rare occasions when these exceptions apply or when a national of a non-state party commits crimes on the territory of a state party. In 2022, ICC Prosecutor Karim Khan opened an investigation into alleged war crimes committed in Ukraine (a self-referral) by all parties, including the armed forces of Russia (a non-state party). Despite the U.S.’s stance on prosecuting citizens of non-states parties, it lauded and supported this move against Russia, only to take a contradictory stance when similar circumstances applied to an ally (Israel) rather than an adversary. This violates the fundamental principle that the law should be applied even-handedly and consistently. 

The Office of the Prosecutor has also found creative ways to interpret the law to pursue justice for victims in countries outside its jurisdiction. The scope of jurisdictional authority was first tested in 2019 when former ICC Prosecutor Fatou Bensouda submitted a request to the Pre-Trial Chamber to rule on whether jurisdiction exists when only one element of the crime occurs on the territory of a state party. The judges affirmed this interpretation of the statute, authorizing the prosecutor to investigate the Myanmar military’s persecution and deportation of the Rohingya population from Myanmar (a non-state party) to Bangladesh (a state party), because one element of the crime of deportation (crossing a state border) occurred in Bangladesh. This decision paved the way for future cases—for example, as some have proposed, this ruling could be used to extend ICC jurisdiction to the Syrian regime for crimes against Syrian refugees in Jordan. This prospect is particularly meaningful in light of the past week in which Syrian President Bashar al-Assad has resigned and become a fugitive who could actually be arrested and held accountable for his many crimes. Holding Assad and other perpetrators responsible for crimes in Syria is a fundamental first step toward building a democracy in that country.

The court’s jurisdiction is also limited by other factors, such as the principle of complementarity and the gravity threshold. While all the crimes within the court’s jurisdiction are serious, the gravity threshold ensures that the prosecutor prioritizes and pursues cases that are especially severe. Complementarity requires that the court may take up an investigation only if the relevant national authorities are unable or unwilling to investigate. In the case of Gaza, for example, Netanyahu has made clear that he is unwilling to investigate himself or Gallant, in spite of Israel’s strong judiciary. 

Importantly, despite the ICC’s limited authority, it has jurisdiction over certain crimes and criminals outside the scope of U.S. federal jurisdiction, which has constraints on extraterritorial prosecutions. While states parties to the ICC have integrated the Rome Statute into their national legislation, the United States, as a non-state party, has not. The U.S. criminal code has provisions enabling the prosecution of some serious human rights violations and war crimes committed outside of the U.S., but they are limited. For example, there is a federal war crimes statute that was broadened after Russia’s full-scale invasion of Ukraine. Previously, the statute provided federal jurisdiction over war crime offenses committed inside or outside the U.S. if the victim or offender is a member of the armed forces or a U.S. national. In 2023, the Justice for Victims of War Crimes Act extended federal jurisdiction over war crime offenses committed anywhere to offenses in which (a) the victim or offender is an alien lawfully admitted for permanent residence or (b) the offender is present in the United States, regardless of the nationality of the victim or offender. Even with this reform, the requirements substantially restrict the scope of war crimes that U.S. law enforcement can investigate, let alone prosecute. 

The U.S. federal torture statute is even more narrow, allowing the Department of Justice to prosecute extraterritorial torture only when the perpetrator is a U.S. national or the alleged offender is found within the United States. Significantly, the statute does not give federal prosecutors extraterritorial jurisdiction over torture committed by foreigners outside the U.S. against American victims. Moreover, the U.S. has no statute that provides jurisdiction over crimes against humanity, which are particularly important when dealing with widespread atrocities committed outside of active hostilities.

Without a mechanism for accountability for international crimes in, for example, fragile states where terrorist organizations proliferate, distant threats abroad may eventually lead to harm in the homeland or against Americans abroad.

Growing Transnational Threats

With increased globalization and interconnectedness through new and emerging technologies, there has been a steep rise in transnational threats that require a multi-state and multi-stakeholder approach. The 2024 Annual Threat Assessment of the U.S. Intelligence Community, a report published by the Office of the Director of National Intelligence (ODNI), provides an instructive overview of current and imminent threats to U.S. national security. These include state threats from powerful adversaries like China and Russia as well as from fragile countries with intrastate turmoil; non-state threats such as transnational organized crime, global terrorism, and violence perpetrated by private military companies; and other transnational threats including disruptive technologies enabled by artificial intelligence and biotechnology, digital authoritarianism and repression, cyber and malign influence operations, and weapons of mass destruction (chemical, biological, and nuclear). The U.S. cannot combat these threats alone. 

Most ICC investigations involve intrastate conflicts in countries that are not a high priority for U.S. investment and security interests but nevertheless present serious medium- to long-term risks to the American public. The ODNI report specifically highlights Afghanistan, Venezuela, Sudan, and the Sahel among those intrastate conflicts that do threaten U.S. national security. The ICC has active investigations in all of these countries, and the threat of ICC indictments is playing a role in keeping their autocratic leaders in check. 

The U.S. was militarily engaged in Afghanistan for 20 years, with significant economic costs and numerous American lives lost in combat. However, after the poorly executed withdrawal of U.S. troops from Afghanistan in August 2021, the Taliban retook control of the government, reinstituting a strict policy of gender discrimination in which women and girls were deprived of basic freedoms and rights. In the U.S.’s absence, the ICC has continued to diligently investigate old and new crimes under the Taliban, including gender persecution. Evidence has shown that the treatment of women and girls in a society is linked to its overall security, and the Taliban’s current policies risk undoing years of progress. ICC prosecutions against members of the Taliban could play a hugely influential role in deterring further repression and abuse of the female population. U.S. prosecutors do not have the authority to hold the Taliban accountable for their crimes and bring justice to these victims, but the ICC does.

In Venezuela, President Nicolas Maduro’s state security forces use excessive and sometimes fatal violence to quell demonstrations and political unrest, leading to the arrest and detainment of thousands of actual or perceived members of the opposition, several of whom have been allegedly subjected to torture and other serious abuses in detention, including children and American hostages. In September, less than a year after the U.S. government recovered 10 American detainees in a prisoner swap, the Maduro regime began imprisoning new American hostages. U.S. federal prosecutors do not have the authority under U.S. law to prosecute Venezuelans torturing Americans in Venezuela, but the ICC does and is already engaged in evidence collection and investigation. While the main tool the U.S. government has to deploy against Venezuelan officials is sanctions, which often harm the civilian population more than the leadership, the ICC has criminal prosecution as its tool, which is a far greater motivator to change behavior.

Sudan is the setting for the worst humanitarian crisis in the world. Over 20 million people have been forced to flee atrocities or face famine and violence. Under the 30-year authoritarian rule of Omar al Bashir, brutal violence and scorched-earth tactics were used against the Fur, Masalit, and Zaghawa ethnic groups. In a short period from 2003-2005, an estimated 200,000 people were killed by Sudanese government forces and armed groups acting on its behalf. Today, Sudan's Darfur region is once again facing a growing risk of genocide, as government forces battle the paramilitary Rapid Support Forces, killing thousands and forcing millions from their homes. Yet Sudan receives minimal media attention or humanitarian assistance from the U.S., which is overcommitted with conflicts in Ukraine and Gaza. 

Conflicts in Sudan and the Sahel, where many countries have recently experienced coups, are creating rich environments for terrorist and criminal networks. Civil unrest is spreading throughout the region—for example, escalating violence in Mali has metastasized across its borders to Burkina Faso, Niger, and Mauritania. This increasing violence and resulting destabilization appear to be expanding with the increased presence of private military forces, like the Wagner Group, which operate in a growing number of African countries. These private military forces are enriching themselves and their governments, which then use those funds to evade sanctions. Russian proxies also engage in information operations, spreading anti-American and anti-Western sentiment throughout the region. While the ICC has been active in this region for years, successfully bringing cases against members of al-Qaeda-affiliated individuals, the U.S. has been relatively unengaged. Without the ICC’s efforts, the region would undoubtedly be an even more active breeding ground for a new generation of high-tech terrorists who are focused on exacerbating animosity against the United States.

These non-state actors, including private militaries and terrorist groups, are well equipped with disruptive technologies, which are proliferating at a rate that makes it challenging for governments to create responsive laws and shape norms to prohibit their abuse. The convergence of these technologies is leading to the rapid expansion of asymmetric threats. U.S. law enforcement have their hands tied until an American national participates in perpetrating the crime or, in some cases, is victim to the crime, but the ICC can act now, using justice and accountability to restore rule of law to these countries and protect civilians. This capability is something the United States should welcome, not impede.

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The ICC is an imperfect institution that has yet to live up to its promised potential. However, the sanctions against the ICC being considered by Congress will do absolutely nothing to change the actions taken by the Prosecutor or judiciary. The ICC is an independent institution with independent judges, who will not and cannot alter their legal opinions in response to arbitrary punishment. The arrest warrants have been issued and will not be revoked in response to sanctions from the U.S. If anything, the proposed sanctions will only stiffen the resolve within the ICC to resist this attempted bullying by outside parties. 

Sanctions legislation against the ICC would be a grievous and potentially irreparable mistake because of its unintended and secondary consequences to the national security of the United States. A poorly conceived, severe, and highly politicized reaction to a legitimate legal process not only fails to account for the hundreds of thousands of victims who will be deprived of justice as a result, but—as the United States’s own intelligence threat assessments underline—it will also make U.S. citizens less safe at home and abroad. Congress must recognize the important role the ICC has played, and must continue to play, in deterring international crimes, protecting democratic values, and maintaining international peace and security for the well-being of all Americans.