The American Branch of the International Law Association’s Committee on International Humanitarian Law (ABILA – IHL Committee) opposes any effort by the United States government to impose sanctions and other retaliatory measures on the International Criminal Court (“ICC” or “Court”), any of its staff and personnel, and persons or organizations that cooperate with the Court’s mission. The ABILA – IHL Committee is alarmed that the House of Representatives has passed proposed legislation (H.R. 8282) to impose such sanctions and visa restrictions on Court staff, judges, witnesses and others who provide support to the ICC.

The proposed U.S. sanctions regime against the ICC threatens to undermine America’s security interests and credibility as a champion of international justice, particularly in the eyes of many U.S. allies that support the Court. These, or similar measures would put the United States at odds with most of its major allies. The sanctions also risk disrupting ongoing investigations and weakening international efforts to achieve accountability for grave human rights abuses.

This statement examines the legal obligations at stake, analyzes the practical consequences for U.S.-supported investigations, notes the threat that sanctions pose to the independence of judicial functions and the rule of law, considers these challenges within the context of the historic U.S. role and essential interest in the establishment of international justice mechanisms, and ends with recommendations.

Sanctions are Contrary to U.S. Interests and Commitments to the Rule of Law  

While the United States is not a party to the Rome Statute, it has long been a proponent of accountability for international crimes, particularly where national systems are unwilling or unable to act. Sanctions are incompatible with these principles and the greater project of the international community that has, with U.S. support, established an independent judicial institution for pursuing legitimate investigations. Sanctions against the ICC would amount to a politicization of justice that challenges the integrity of the international legal order, without which there can be no international peace, security, or justice.

By penalizing ICC officials for carrying out their legal mandate, sanctions would signal to other nations that political considerations can override the rule of law. Moreover, sanctions risk creating a chilling effect on international cooperation, as states and organizations may be deterred from engaging with the ICC for fear of similar reprisals. This is particularly disturbing in view of the recent US backing for ICC investigations into Russian war crimes in Ukraine. Such selectivity is particularly debilitating to the principle of universality in international justice and furthers the perception that international law is applied because of political convenience, rather than pursuant to consistent legal standards. Inconsistency of this type reduces the strength of the international system of the rule of law and serves perpetrators of international crimes who seek impunity from that system.   

Practical Consequences

The proposed sanctions would immediately and significantly impact investigations that the United States actively supports, such as that concerning Russia/Ukraine, among others. In targeting ICC officials, judges, and personnel, the sanctions would create a climate of fear that deters cooperation and collaboration so essential to the work of the Court. Witnesses, legal experts, and investigators with critical information may be discouraged from participating for fear of retaliation. In practice, that would have a chilling effect on the ICC’s ability to investigate, prosecute crimes, and render justice for victims. Resources would be diverted from investigations and prosecutions, undermining the Court’s ability to address atrocities in Ukraine, Sudan, Venezuela – situations in which the U.S. rightly has an interest. This would not only harm victims through delayed or denied justice but also disrupt ongoing investigations into crimes of urgent international concern, including investigations supported by the United States. Additionally, sanctions would alienate valuable international partners and institutions.

The ICC relies on states and international organizations to effectively function through cooperation. Sanctions may inhibit other nations from actively engaging with the ICC and embolden states to shield their citizens from accountability, further undermining global efforts to combat impunity for war crimes, crimes against humanity, genocide, and the crime of waging aggressive war.

Threat to Judicial Independence and the Rule of Law  

The proposed sanctions strike at the heart of judicial independence, a cornerstone of the rule of law. The ICC’s mandate requires it to operate free from external interference, rendering decisions based solely on legal principles and evidence. By punishing ICC officials for fulfilling their duties, the sanctions undermine this independence, sending a dangerous message that judicial decisions can be retaliated against if they conflict with political interests.

This erosion of judicial independence would have far-reaching implications. It could weaken public trust in international legal institutions, undermine the integrity of judicial processes, and destabilize efforts to establish a consistent, impartial framework for addressing international crimes. History has shown that political interference in judicial processes breeds instability and weakens the rule of law, fueling cycles of conflict and impunity.

For victims of international crimes, the impact would be particularly devastating. The ICC was established to provide justice for those who have suffered the most egregious violations of human rights. Sanctions that target the Court’s personnel and operations threaten to deny victims access to justice by undermining the institution tasked with holding perpetrators accountable. This not only harms individual victims but also undermines broader efforts to achieve reconciliation and peace in affected regions.

Historical Perspective and the U.S. Role in International Justice  

The United States has historically been a key proponent of international justice, recognizing its role in promoting peace, security, and accountability. From the Nuremberg Trials to its support for ad hoc tribunals addressing mass atrocity crimes in Rwanda and the former Yugoslavia, the U.S. has played a pivotal role in advancing the principles of international law. More recently, the United States has amended its War Crimes Act to permit prosecution of those who commit “grave breaches” of the Geneva Conventions, regardless of where the violations occur. This has enabled the United States to prosecute Russian and Syrian war criminals, consistent with our international legal obligations. These cumulative developments in the field of international criminal justice, led by and adopted by the United States, have become critical elements in the efforts of the international community to end impunity for the worst international crimes. Sanctions against the ICC, especially if imposed by the United States, would be contrary to U.S. interests, exacerbating the problem of impunity, inconsistency, and double standards.

The U.S. commitment to international justice has been driven not only by moral imperatives but also by pragmatic considerations. A robust system of international justice helps deter atrocities, fosters stability, and upholds the rule of law, which aligns with U.S. interests in global peace and security. The proposed sanctions, however, represent a departure from this tradition, undermining the very principles that have guided U.S. engagement with international justice.

To maintain its leadership in advancing global justice, the United States must reject actions that weaken the international legal system and the rule of law. Instead, it should reaffirm its commitment to supporting impartial judicial mechanisms like the ICC, recognizing their essential role in addressing the world’s most serious crimes. By doing so, the United States can ensure that its actions align with both its values and its long-term strategic interests, contributing to a world order based on justice and the rule of law.

Recommendations

To retain its leadership role in advancing justice internationally, the United States should:

1. Reject the proposed sanctions against the ICC,

2. Reiterate its commitment to support independent judicial mechanisms,

3. Engage constructively with the ICC on matters of mutual concern, and

4. Flesh out alternative approaches that would enhance, not undermine, international justice.

In implementing these recommendations, the United States can fulfill its values and long-term strategic interests, and it can help reinforce an international order in which the rule of law fosters stability, consistent with its historic leading role in pursuit of accountability for grave international crimes.