Biden opposition leaves House bill hitting ICC in limbo

The White House has complicated Congress’s plans to reprimand the International Criminal Court (ICC) over the Israel-Hamas war, shooting down the nascent sanctions proposal that bipartisan House negotiators had hoped to move to President Biden’s desk early next month. 

Rep. Michael McCaul (R-Texas), head of the Foreign Affairs Committee, has been in talks with Democrats in both chambers and the administration over legislation to slap penalties on ICC officials for recommending war crimes charges against Israeli leaders, including Prime Minister Benjamin Netanyahu, for their conduct throughout the conflict. McCaul had hoped to move the bill quickly to the House floor when Congress returns to Washington next week.

The White House’s opposition to that plan puts House GOP leaders at a crossroads: Either they press on with the sanctions proposal, knowing it likely won’t become law. Or they return to the drawing board and work with the administration on an alternative form of admonishment that can demonstrate Washington’s support for Israel and win the bipartisan backing needed to be enacted.

White House spokesperson Karine Jean-Pierre said the administration is interested in finding that alternative, vowing to “work with Congress on other options.” But sanctions, she emphasized, are unacceptable. 

“We fundamentally reject the ICC prosecutor’s application for arrest warrants against Israeli leaders,” she said Tuesday. “Sanctions on the ICC, however, we do not believe is an effective or an appropriate path forward.”

White House spokesperson John Kirby echoed that sentiment, telling reporters, “we don’t believe that sanctioning the ICC is the answer.”

The White House’s opposition to ICC sanctions marks a departure of sorts for the administration after Secretary of State Antony Blinken appeared open to penalizing the court through legislation.

During a hearing before the Senate Foreign Relations Committee last week, Blinken told lawmakers “we’ll be happy to work with Congress, with this committee on an appropriate response” to the ICC’s decision, which he labeled “totally wrongheaded.”

He noted, however, that “the devil’s in the details,” adding “let’s see what you got and we can take it from there.”

The White House’s opposition to sanctions appeared to catch some Capitol Hill lawmakers off guard. And GOP leaders — who have been vocal defenders of Israel’s military campaign in Gaza in the wake of Hamas’s Oct. 7 terrorist attacks — wasted no time accusing the administration of abandoning a democratic ally in the midst of war. 

“The ICC should clearly be sanctioned for its outrageous and unfounded claims of authority,” Speaker Mike Johnson (R-La.) posted on social platform X. “The White House’s refusal to protect Israelis and Americans is a terrible decision that will set a dangerous precedent.”

Netanyahu himself piled on, telling SiriusXM’s “The Morgan Ortagus Show” in an interview, “I’m surprised and disappointed.”

“The United States said that they would, in fact, back the sanctions bill,” Netanyahu said in the interview, a clip of which was first shared with Politico. “I thought that was still the American position because there was bipartisan consensus just a few days ago … Now you say there’s a question mark.”

It remains unclear how GOP leaders will respond, legislatively, to the administration’s position.

McCaul has emphasized that he wants a bipartisan bill to send the message that Congress is largely united in Israel’s defense, not a partisan proposal that alienates Democrats and never gets to Biden’s desk. 

“We want something that can become law,” McCaul told reporters last week before Congress left Washington for a long holiday recess. “We’re not really interested in a messaging bill.” 

His office did not respond Wednesday to requests for comment about his next steps.

Republicans are not alone in demanding a sharp response to the ICC’s proposed charges. Rep. Brad Schneider (D-Ill.), a staunch Israel ally, praised the Biden administration’s “unequivocal condemnation of the ICC’s outrageous false equivalence between our closest friend in the Middle East and the Hamas terrorist organization.” But words alone, he added, aren’t enough.

“Congress must act,” Schneider said Wednesday in a statement. “I hope that Speaker Johnson works in a bipartisan manner with House Democrats, the Senate and the Administration to bring to the floor a bipartisan common sense bill that pushes back against these actions by the ICC.”

ICC Prosecutor Karim Khan, a British human rights attorney, announced last week that he was filing arrest warrants against Netanyahu, Israeli Defense Minister Yoav Gallant, and the leaders of Hamas, alleging that they “bear criminal responsibility” for a list of war crimes, including starvation of civilians as a method of warfare and extermination as a crime against humanity, among others.

ICC judges will now weigh whether to grant the arrest warrants. McCaul last week said the sanctions bill is important for “deterrence purposes.”

The Foreign Affairs Committee chair maintains a close relationship with Rep. Gregory Meeks (N.Y.), the panel’s top Democrat, who has also voiced support for pushing back against the ICC. Like McCaul, he has stressed the importance of having the effort be bipartisan.

“We should make sure that we’re together,” he told reporters just before the break. “I’m willing to do it. I hope they are too.”

Meeks’s office did not respond to questions about the administration’s opposition to sanctions. 

It also remains unclear what other tools Congress has at its disposal to punish the ICC. The United States has never recognized the legitimacy of the global court, which was created in 2002 to prosecute cases of genocide and other crimes against humanity. And because Congress doesn’t provide the ICC with any funding, lawmakers have virtually no leverage over the court’s operations — an independence that many liberal Democrats say is a key asset. 

Republicans are more united in their approach to the ICC, saying the court has no jurisdiction over Americans or other U.S. allies with their own functioning judicial systems. Rep. Warren Davidson (R-Ohio), a member of the Foreign Affairs Committee, acknowledged this week that Congress has few powers to punish the ICC, but suggested Congress could send a message by withholding funding from another international body: the United Nations. 

“We clearly have leverage over it in terms of the funding that we do throughout the international community, so could we use that leverage,” Davidson told The Hill by phone.

There is some precedent for the U.S. slapping sanctions on the ICC. In September 2020, then-President Trump signed an executive order that imposed economic and travel sanctions against the chief ICC prosecutor and one of her top aides as they investigated alleged war crimes committed by U.S. forces in Afghanistan.

Less than a year later, in April 2021, the Biden administration revoked the sanctions.

As Congress continues to consider ways to penalize the ICC after its controversial move against Netanyahu, lawmakers are vowing to explore any approach to send their message to the criminal court.

“Again and again, international institutions like the ICC and the UN have shown their true colors and their vile hatred of America and Israel,” Rep. Mike Lawler (R-N.Y.), a member of the Foreign Affairs Committee, told The Hill in a statement. “I will continue working with my colleagues in Congress, exploring every avenue — up to and including sanctions — to ensure that these bad actors are held accountable.”