Last week, Senate Democrats tanked a vote on a bill that would have slapped sanctions on the International Criminal Court for its outrageous arrest warrants against Prime Minister Benjamin Netanyahu and his former defense minister, Yoav Gallant.
The ICC’s action showed its willingness to act against non-members like Israel and the United States, putting American service members and other potential US targets in danger.
But the Democrats’ action was equally craven: Not only did it keep alive the grotesque prosecution of Israel’s leaders for defending their nation against terrorist attackers, it set a ticking time bomb for President Trump.
The “Illegitimate Court Counteraction Act” would have imposed direct sanctions on ICC officials who “engaged in any effort to investigate, arrest, detain, or prosecute” an individual or entity in the United States, or any citizen or lawful resident of a US ally that has not agreed to the court’s jurisdiction.
In other words, the bill would have protected Americans and allies like Israel from being targeted by the rogue court.
The bill passed with significant bipartisan support in the House, and Senate Democrats previously said they favored it.
But at the last minute Senate Minority Leader Chuck Schumer (D-NY) manufactured a quibble to justify voting against it, claiming the bill’s “lack of precision” could have put in its crosshairs American tech companies that assist the ICC in its investigations.
Schumer’s argument was disingenuous: The first Trump administration imposed sanctions almost identical to those in the bill by executive order, without any US firms being penalized.
But it was enough to sink the ICC Act — and preserve the court’s hounding of Israel in the wake of Oct. 7.
The ICC enjoys a ballooning annual budget of $200 million, yet over its entire lifespan it has convicted a total of six individuals of the mass-atrocity crimes it was supposedly designed to prosecute.
Having had little success targeting warlords and mass murderers like Sudan’s Omar al-Bashir, it turned its attention to Israel, a non-member state and globalists’ favorite punching bag.
And the action against Netanyahu came after the ICC in 2020 opened an investigation into the United States, allegedly for military service members’ war crimes in Afghanistan.
Senate Democrats are far from stupid. Their party has already used impeachment, state prosecution and federal criminal charges to target Trump — and they view the ICC warrants against Israeli officials as an avenue for a future lawfare strategy.
Four years from now, when Trump is once again an ex-president, expect the ICC to seek warrants against him, administration officials and perhaps Republican lawmakers for attempting to sanction it.
The ICC warrants against Israeli leaders show that its prosecutors can be as creative as Manhattan District Attorney Alvin Bragg in manufacturing charges.
Indeed, the ICC prosecutor has already threatened American legislators with punishment merely for threatening to “retaliate” against the court with sanctions.
Of course, should a Trump indictment happen, a Democratic presidential successor would publicly lament the ICC’s overreach, while doing nothing to stop it.
The ICC is no stranger to such maneuvers. In its latest ploy targeting Israel, the court invented a state of Palestine over which to exercise its jurisdiction, then invented a phenomenon of mass starvation in Gaza to prosecute, despite the thousands of aid trucks Israel has facilitated.
Senate Democrats also claimed that sanctions would only make the ICC dig in its heels against Israel, but experience shows otherwise.
When Trump sanctioned ICC personnel via executive order in 2020, its prosecutors promptly abandoned their investigation into alleged torture by US troops stationed in Afghanistan — only to reopen the matter when President Biden rescinded the sanctions.
Ironically, ICC officials thought the court could survive the sanctions that Schumer blocked. What they truly fear is a stronger measure that would sanction the institution itself, not just its employees.
Republicans passed on imposing such a measure because Democrats signaled their support for the more limited bipartisan bill that passed the House.
Now that the façade of cooperation has disappeared, Trump has no reason not to sanction the ICC once again by executive order — and now that he’s witnessed the cozy relationship between the court and the Democrats, he knows he can’t stop at half-measures.
Erielle Azerrad is a senior fellow at the Center for the Middle East and International Law at George Mason’s Scalia Law School, where Eugene Kontorovich is a professor of law.
