Fight over sanctions on international court splinters Democrats

The bipartisan effort to punish the International Criminal Court (ICC) for its proposal to charge Israeli leaders with war crimes is splintering Democrats in the House, where liberal human-rights advocates are defending the world court against party leaders poised to slap it with sanctions.

The dispute is just the latest in a long-running feud between Israel’s Democratic allies — who have accused the ICC’s top prosecutor of promoting false equivalencies between the democratic leaders of Israel and the terrorist leaders of Hamas — and progressive critics of Prime Minister Benjamin Netanyahu and his wartime strategy in Gaza, where thousands of people have been killed by Israeli strikes.

The debate is a lopsided one: A majority of Democrats appear ready to support ICC sanctions if and when the bill hits the floor, as early as the first week of June. But the liberal defenders of the ICC are a vocal group, and they aren’t mincing words as they cheer the court’s accusations that Netanyahu and his defense minister are guilty of crimes against humanity. 

“You can't discriminate against what parties and countries the ICC would have jurisdiction over. You can't just cherry-pick your targets,” Rep. Hank Johnson (D-Ga.) said. “So with respect to the ICC's alleged equation of Hamas with Netanyahu, I think that's a red herring. The bottom line is they both are guilty of violations of human rights, and that's why they were both charged.”

Some progressives have taken their responses a step further, backing up the ICC while also lobbing sharp criticisms at those who have condemned the court’s move — including President Biden.

“It’s profoundly disturbing,” Rep. Alexandria Ocasio-Cortez (D-N.Y.) told reporters when asked about Democratic and Republican leaders, and Biden, deriding the ICC’s decision.

“It is an alarming precedent to set to attack institutions of international business who are responsible for really litigating international law and considering international law,” she added.

Rep. Pramila Jayapal (D-Wash.), head of the Congressional Progressive Caucus, delivered a similar defense of the ICC’s global role. 

“The ICC is an independent court, and they're going to come to their independent decisions, and they also have an expert panel that they consulted with,” she said. “And I think that it is something that we have to take very, very seriously."

The liberal support for the global court stands in sharp contrast to the remarks coming from Biden, Democratic leaders on Capitol Hill and a long list of rank-and-file Democrats who are bashing the court’s decision to target Netanyahu as an unjustified attack on the only functioning democracy in the Middle East.

Biden called the proposed charges “outrageous.” And other lawmakers have been quick to echo that indignation.

"There needs to be bipartisan condemnation for what the ICC did,” said ​​Rep. Greg Stanton (D-Ariz.), a member of the Foreign Affairs Committee. “There's no comparison between a terrorist organization and the elected leadership of Israel.”

Neither the United States nor Israel have endorsed the ICC’s charter, meaning the court has little recourse to prosecute alleged crimes by citizens of those countries. Still, the court’s critics say the recommended charges against Netanyahu send a dangerous message to Israel’s enemies — and justify the United State’s decision not to ratify the ICC’s authority. 

“The actions by the prosecutor — we'll see what happens with these judges — really threatens the credibility of the court,” said Rep. Brad Schneider (D-Ill.), a staunch Israel ally. “This kind of gives you the explanation of why we haven't” endorsed the ICC. 

House Minority Leader Hakeem Jeffries (D-N.Y.) delivered a similar assessment this week. 

“The United States … is not part of the International Criminal Court at this particular moment in time,” he said, “and I think that's appropriate.”

That view is being challenged by some members of his caucus, however, who say Washington’s unwillingness to endorse the ICC is a dereliction of global leadership on the issue of human rights. 

“All nations that have not signed onto the treaty that establishes the jurisdiction of that court should be signed on,” Johnson said. “There are international norms, and America sets those norms, ironically.” 

The fierce debate has been boiling since Monday, when ICC chief prosecutor Karim Khan, a British human rights attorney, filed arrest warrant applications for top Israeli and Hamas leaders, sparking intense outrage from Tel Aviv to Washington. The court alleged that Netanyahu and his defense minister, Yoav Gallant, “bear criminal responsibility” for a list of war crimes, including allegations that they’ve used starvation as a weapon in Gaza.

The court’s judges will now decide whether to grant the arrest warrants.

In the meantime, the heated discussion over the ICC’s explosive effort is set to come to a head early next month, when top Republicans are vowing to begin consideration of a bill to sanction the criminal court for its conduct.

Rep. Michael McCaul (R-Texas), the chair of the Foreign Affairs Committee, said he wants the panel to mark up an ICC sanctions bill on June 3, the first day the House returns to session.

McCaul — who stressed that the measure must be bipartisan so it can land on Biden’s desk — said the purpose of the legislation is to deter ICC judges from approving the arrest warrants.

“This is really for deterrence purposes,” McCaul said Thursday. “A deterrent to approve the arrest warrant application.”

McCaul is in ongoing talks with a number of Democrats, including Rep. Gregory Meeks (D-N.Y.), ranking member of the Foreign Affairs panel, Sen. Ben Cardin (D-Md.), chair of the Foreign Relations Committee, and Secretary of State Antony Blinken, who says the administration is open to a punitive response to the ICC’s proposed charges. 

The exact nature of the sanctions remains unclear. But supporters of the idea in both parties are pushing to make them severe in order to send a clear message of deterrence.

“We're hoping for a strong pushback,” Stanton said. 

That plan, however, runs counter to the mindset of many progressive Democrats, who believe that the court should have the space to make independent decisions on whether or not to pursue arrest warrants for Netanyahu, Gallant and the leaders of Hamas.

“I don't think there's a moral equivalence between Israel and Hamas,” Rep. Ro Khanna (D-Calif.) said. “But I think they should be allowed to investigate the evidence to see what laws were violated."

“For me this is less about lobbying towards one decision or another, and is more about respecting the independence of the court,” Ocasio-Cortez said. “I support the court’s independence in making their decision.”

The ICC debate comes as congressional leaders inch closer to inviting Netanyahu to the Capitol to address a joint session of Congress, a speech that has been under discussion for weeks.

Speaker Mike Johnson (R-La.) has drafted a letter inviting Netanyahu to Washington, which is still awaiting signature from Senate Majority Leader Chuck Schumer (D-N.Y.). The New York Democrat — who is the highest-ranking Jewish official in U.S. history — told reporters this week that he is “discussing” the prospect with the Speaker.

Progressives — who have been critical of Netanyahu’s conservative government for years, a stance that has grown more pronounced amid Israel’s war against Hamas — have sounded off on the possibility of the prime minister visiting the Capitol, with some already vowing to boycott the event.

In the aftermath of the ICC’s move against Netanyahu, those lawmakers have amped up their criticism, arguing that the court’s allegations are another reason why the Israeli prime minister should not address Congress at this moment.

Rep. Mark Pocan (D-Wis.), a former head of the Progressive Caucus and a sharp Netanyahu critic, said only one positive thing could come of such a visit.

"It's a good opportunity for the ICC to serve a warrant,” Pocan quipped. “So I'll take the silver lining of it.”