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Why the Biden administration decided not to sanction the ICC

Israeli Prime Minister Benjamin Netanyahu said he was 'surprised' by the Biden administration's shift on sanctions
US President Joe Biden, accompanied by Vice President Kamala Harris, gestures to audience after speaking at Girard College in Philadelphia, Pennsylvania, on 29 May (Andrew Harnik/Getty Images/AFP)

The Biden administration made a sharp U-turn on sanctioning the International Criminal Court of Justice, amid warnings from lawmakers and human rights groups against the move.

“They (the Biden administration) realised that sanctions won’t change the outcome and it will begin to make the US look like a pariah state,” Adam Weinstein, deputy director of the Middle East programme at the Quincy Institute for Responsible Statecraft, told Middle East Eye.

“It is the kind of move you’d expect from an illiberal dictatorship,” he added. 

At a Senate hearing last week, Republican Senator Lindsey Graham told Secretary of State Antony Blinken that he wanted a bipartisan effort to sanction the ICC, in response to its prosecutor's call for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant.

"I welcome working with you on that," Blinken responded.

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Then on Tuesday, the White House walked back those comments, with White House spokesperson John Kirby telling reporters, “We don't believe that sanctions against the ICC is the right approach here”.

The move happened so suddenly that it caught Israel off guard.

Israeli Prime Minister Benjamin Netanyahu said he was “disappointed” that the Biden administration would not support the move.

“I thought that was still the American position because there was bipartisan consensus just a few days ago,” Netanyahu said, according to an excerpt of a Sirius XM interview on The Morgan Ortagus Show set to air Sunday.

“Now you say there’s a question mark…. frankly I’m surprised and disappointed.”

Analysts say the flip-flop underlines the Biden administration’s tangled policy on Gaza, as it struggles to reconcile support for its closest Middle East ally - as well as the US's growing isolation on the world stage. Besides trying to push Israel for a ceasefire, the White House is caught between a sharp divide in the Democratic Party over the war on Gaza.

'Bad precedent'

Blinken’s statements on sanctioning the ICC sparked a pushback from human rights experts.

Last week, 121 human rights and civil society groups warned President Biden in a letter against the move.

“We urge your administration to oppose the threats and calls for punitive actions against the Court…Acting on these calls would do grave harm to the interests of all victims globally and to the US government’s ability to champion human rights,” the groups said in a letter.

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Experts noted that the Biden administration’s suggestion that it would back sanctions on the ICC sounded particularly hollow after Biden welcomed the court’s decision in March 2023 to issue an arrest warrant for Putin.

Some pro-Israel Democratic lawmakers backed the call. Congressman Brad Sherman said the US should consider visa bans against ICC officials, but key senior Democratic lawmakers also opposed the move.

US Senator Chris Murphy said, “I don’t even know what that means” when asked about sanctioning the ICC.

Press Secretary Karine Jean-Pierre, was more direct, saying Congressional sanctions against the ICC "is not something the administration is going to support".

Weinstein said any move by the administration to sanction the court “would set a bad precedent”, adding, “Would the US sanction the ICC every time it goes after an ally?”

The move from the ICC to seek arrest warrants for Israeli officials has diplomatically isolated both Israel and the US with some major European powers, which are US and Israeli allies, saying the decision by the ICC is binding and must be respected. Some have even gone so far as to say that they would have to implement the warrants with an arrest if such a situation arose. 

The European Union's foreign policy chief Josep Borrel said EU countries are bound to implement the court's decisions.

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