ICC sanctions will hurt, not help, the United States

On February 6, President Donald Trump issued an executive order to impose sanctions on officials, employees, and agents of the International Criminal Court (ICC) for “illegitimate and baseless actions targeting America and our close ally Israel.” The executive order, which restricts targets’ entry into the United States and allows their property and assets to be blocked, currently only names ICC Chief Prosecutor Karim Khan as a target, but others are likely to follow.

Trump’s order follows similar action by Congress to levy sanctions against foreign nationals involved in efforts to investigate, arrest, detain, or prosecute Americans and allies that don’t consent to the court’s jurisdiction. Eleven days before Trump’s second inauguration, the House of Representatives passed a bill dubbed the “Illegitimate Court Counteraction Act,” which purports to protect U.S. and allied personnel. But the bill, like Trump’s executive order, mentions just one ally by name: Israel, which waged a devastating retaliatory war in Gaza following the October 7, 2023 Hamas terrorist attacks.

The bill has been with the Senate for more than a month and, if it passes, Trump is sure to sign it into law. (It seems that senators were moving too slowly for the president, who wanted to attack the court as soon as was possible.) While it would be mostly duplicative at this point, the bill becoming law would underscore how broad and deep the U.S. government’s antipathy toward the ICC goes—not just among Republicans but also among a number of Democrats.

But in time, Trump and his allies on the Hill will likely find that sanctions aren’t effective and hurt more than they help. Past experience offers a guide to what we should expect from U.S. sanctions on the ICC.

Sanctions, again

In September 2018, the first Trump administration threatened to sanction ICC personnel investigating American servicemembers for alleged war crimes committed in Afghanistan. The ICC’s probe into the war in Afghanistan didn’t target Americans, per se, but addressed both pro-government forces (namely the Afghan National Security Forces and U.S. military and intelligence personnel) and anti-government forces (notably the Taliban). Despite the threat of sanctions, the ICC’s chief prosecutor at the time, Fatou Bensouda, continued her preliminary examination.

The Trump administration retaliated by revoking Bensouda’s U.S. visa in April 2019. Shortly thereafter, judges in the ICC’s pre-trial chamber rejected Bensouda’s request to upgrade her preliminary examination into a full investigation. While the pretrial chamber judges seem to have capitulated to U.S. pressure, Bensouda didn’t. She appealed the decision and judges in the court’s appellate chamber authorized her investigation in March 2020.

Three months later, in June, anticipating that Bensouda would also pursue a full investigation into the Israeli-Palestinian conflict, Trump escalated his conflict with the ICC, issuing an executive order for sanctions against individuals and entities directly engaged in or that materially supported investigations involving Americans, Israelis, and other allies whose countries don’t consent to the ICC’s jurisdiction.

Bensouda was first on the list, but she pressed on. She continued her investigation in Afghanistan and, as the Trump administration had feared, commenced a full-fledged investigation into the Israeli-Palestinian conflict in February 2021.

That June, Bensouda’s term ended and Khan’s term began. A few months in, he announced that he would focus the Afghanistan investigation on Taliban and Islamic State fighters, not Americans, leading some to speculate that he was backing down to U.S. pressure. The Palestine investigation also seemed to lie dormant—until late 2023 when Hamas attacked Israel, initiating a 15-month war.

Regarding the Israeli-Palestinian conflict, Khan, like Bensouda, hasn’t been deterred—despite intimidation and the possibility of U.S. sanctions against him and members of his family, as well as his colleagues within and outside the court. In fact, in November 2024, judges in the ICC’s pretrial chamber authorized Khan’s request for arrest warrants for Israeli and Hamas leaders.

What will be the fallout?

Sanctions haven’t stopped the court’s work in the past and could backfire this time too. At best, sanctions are punitive and performative and will ultimately make U.S. leaders look ineffectual. At worst, sanctions will undermine U.S. credibility on the world stage and give cover to U.S. adversaries such as Russia that also oppose the ICC, thereby eroding the international rule of law.

To be sure, upholding the international rule of law may not be a priority for the Republicans who are in control of the presidency, House, and Senate if recent attempts to erode the domestic rule of law (such as clemency for the Jan. 6 rioters) are any indication. It’s hard, too, to overstate Republicans’ (and some Democrats’) unequivocal support for Israel, which is under significant scrutiny at the ICC and other international organizations. One also can’t overlook their antipathy toward Palestine, whose sovereignty is now recognized by more than 140 countries and which has been gaining diplomatic support in international fora. Notwithstanding the low odds of the president and lawmakers rethinking ICC sanctions, it’s important to consider the drawbacks of attacking the court in this way.

Global public opinion surveys indicate that support for Israel has decreased since 2023. U.S. and Israeli attempts to intimidate the ICC likely won’t help Israel (or the United States) in the court of public opinion, especially abroad. Numerous studies also show that international publics tend to favor respect for international law and are more willing to have their governments lend diplomatic, economic, and military assistance to rule followers than to rule breakers. Foreign governments could decide to cooperate less with the United States and Israel and cooperate more with the ICC and other international organizations that the Trump administration opposes.

Certainly, many international actors appear committed to standing up for the ICC, at least in their rhetoric. A large international coalition of human rights organizations, including Amnesty International and Human Rights Watch, opposes U.S. ICC sanctions, as do officials at the United Nations. In response to the Trump administration’s sanctions in 2020 and a request for support from the court, 88 countries (representing more than two-thirds of the ICC’s membership) publicly defended the court and condemned the sanctions, intimidation, and interference, including Germany, France, Canada, and the United Kingdom. In the years since, numerous countries, including some U.S. allies, have indicated that they will continue supporting the ICC and are prepared to defy the United States by complying with the court, even with respect to the arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant.

International criticism is likely to be as strong if not stronger than before, especially if the United States sanctions not just prosecutors but also judges. The judges involved in the Israel-Palestine case hail from Benin, France, and Slovenia. It’s hard to see their countries not coming to their defense should Washington target them, though we don’t know exactly how they would retaliate. (The United Kingdom, Khan’s home country, hasn’t said how it will proceed.)

Ultimately, as has previously been the case, U.S. sanctions are punitive for international civil servants at the ICC and likely won’t influence the court’s work. Attacking the ICC and its partners makes the United States look lawless and weak; attempts to shield Israel from accountability for reported abuses in Palestine could further damage the United States’ image and erode global public support for Israel.

If the U.S. government disagrees with the cases that prosecutors and judges take up—at the ICC or anywhere else—it shouldn’t try to intimidate court officials and their partners or interfere in their work. As leaders in a democratic society, the president and members of Congress should recognize that the independence of prosecutors and judges, whether domestic or international, is an essential tenet of the rule of law and a bedrock of democracy.