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Senate Republicans failed Tuesday, at least for the time being, to advance a bill that would impose sanctions on the International Criminal Court, after Democrats largely rejected the effort and some of Washington's top European allies warned that it would "cripple" the world's preeminent international court, enable war criminals to act with impunity and degrade the West's moral authority.
GOP lawmakers launched the Illegitimate Court Counteraction Act, sponsored in the Senate by Sen. Tom Cotton (R-Arkansas) and 11 other Republicans, after the International Criminal Court at The Hague in May brought charges against Israeli leaders - along with Hamas militant leaders - for alleged war crimes and crimes against humanity surrounding the war in Gaza.
The ICC arrest warrants for Israeli Prime Minister Benjamin Netanyahu and then-Defense Minister Yoav Gallant, the leaders of a major U.S. ally and recipient of U.S. weapons, infuriated lawmakers on both sides of the aisle.
But the GOP bill, which passed the House this month, failed to muster the two-thirds support it needed to pass a key procedural vote in the Senate. All but one Democrat, Sen. John Fetterman (Pennsylvania), voted against proceeding with the sanctions after Republicans rebuffed an effort by Sen. Jeanne Shaheen (D-New Hampshire) to more narrowly tailor the legislation.
Senate aides said that Shaheen, in the days and hours ahead of the vote, had sought to negotiate amendments that would provide some protection for U.S. companies' subsidiaries and for U.S. allies who are members of the ICC, while still accomplishing some punitive measure for its charges against Israeli leaders.
It is unclear whether any Senate Republicans, who hold the chamber's majority, can be persuaded to accept those changes so that the bill can move forward.
Critics of the effort said the bill - which would require the imposition of sanctions against any individual involved in the ICC's efforts to "investigate, arrest, detain, or prosecute" an American, Israeli or other U.S. ally - is so broad that it would do much more than that.
A group of 20 top European diplomats aired their concerns with Senate leaders last month. Sanctions would "threaten to erode the international rule of law, which is crucial for promoting global order and security," they wrote in a private letter, a copy of which was obtained by The Washington Post.
"Such measures," the ambassadors said, "would undermine the very principle of international justice and accountability, to which the US has been a strong proponent, and strengthen the positions of states that oppose the rule of law."
The ICC was founded in 2002 after the Rwandan genocide and ethnic cleansing in Bosnia and Croatia left world leaders grasping for a central means of accountability. It is meant to serve as a permanent international court to prosecute the world's worst war crimes in instances in which the governments of jurisdiction are either unable or unwilling to deliver justice.
Israel has drawn international condemnation for its handling of the war in Gaza, which it launched in response to the devastating Hamas-led attack on Israel in October 2023 that killed 1,200 people.
In the 15 months since then, Israeli bombardment of Gaza has killed more than 47,300 Palestinians, including thousands of children, according to Palestinian health authorities; furthered mass starvation and malnutrition among the population; and left most of the once densely populated territory uninhabitable.
But ICC charges against Israel sparked fury among lawmakers and the Biden administration, who accused the court of acting beyond its jurisdiction. Israel and the United States are not signatories to the statute governing the court.
The bill called the ICC's actions against Israel "illegitimate and baseless" and said that the charges would set a "damaging precedent" that threatens the United States, Israel and other "partners who have not submitted to the International Criminal Court's jurisdiction."
Canada, Britain, Australia, Japan, South Korea and all other major U.S. allies are among the 125 countries that recognize the court. Russia, China, Iran and North Korea are not signatories and oppose the court's work.
"Sanctioning lawyers and judges and prosecutors for doing their job is just nothing short of an attack on the rule of law," said Leila Sadat, a professor of international law at Washington University in St. Louis and special adviser on crimes against humanity to the ICC prosecutor.
"It puts us in the same camp as the Russians," Sadat said in an interview Monday. "The Russians don't like the arrest warrants, and so they've sanctioned nine members of the ICC. So we are behaving like the Russian Federation, which is not how I thought the United States of America would comport itself."
While not a party to the court, the United States has still provided resources and other support to ICC cases, including ongoing investigations into alleged Russian war crimes in Ukraine, and has lauded efforts to hold accountable the alleged perpetrators of war crimes in Darfur and Uganda, among other places.
The sanctions mandated by the bill would "severely undermine" all of the cases under investigation by the court, "some of which are already at an advanced stage, thanks in part to US support," the European diplomats wrote in their letter.
If the bill becomes law, it might force the court to close its field offices in Ukraine and other places, and it "would also have chilling effects" on organizations that work with the ICC, judges and prosecutors, police officers, civil servants, and nongovernmental organizations. "Suspects currently detained may have to be released," the letter says.
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