The executive order issued by US President Donald Trump last week to impose sanctions on the International Criminal Court (ICC) has laid bare decades-old American resistance to the notion of international criminal justice and to the court since its inception in 2002.
Although the US is not a member of the ICC and was among the minority of states that voted against its formation, the sanctions issued by Trump could impact its work and staff.
They come in response to the court’s decision in June 2024 to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and then Israeli defence minister Yoav Gallant on charges of committing war crimes in Gaza.
The arrest warrants also included two Hamas leaders who have since been killed by Israel.
The unprecedented move by the ICC sent shockwaves across Israel, which, as the occupying force of Palestinian Territories, has enjoyed decades of legal and political immunity despite its repeated violations of international law and UN resolutions.
Seventy-nine member states of the Rome Statute, the charter that founded the ICC, issued a joint statement expressing “unwavering support” in response to Trump’s executive order. A majority of member states, including the UK, Germany, and France, said that the ICC was a vital pillar of the international justice system.
The Hague-based ICC is the only global and independent intergovernmental body with powers to investigate and try individuals charged with genocide, war crimes, crimes against humanity and the crime of aggression.
Although the court counts 125 member states around the world, including the UK and many European nations, at least four Western states did not sign the statement criticising Trump’s action.
Australia, the Czech Republic, Hungary, and Italy were among those that were absent.
Last year, in response to a warning by 12 Republican Senators to the ICC, 93 of the court’s member states issued a similar statement supporting the court and its independence. This time, only 79 have agreed to support the court, with 14 choosing not to.
Trump’s executive order contained a veiled threat to ICC member states.
“The United States unequivocally opposes and expects our allies to oppose any ICC actions against the United States, Israel, or any other ally of the United States that has not consented to ICC jurisdiction,” the order read.
The court has jurisdiction where any of the crimes that fall within its mandate take place. While Israel is not an ICC member, Palestine is. Since Israel’s war crimes have happened in Gaza, which is Palestinian Territory, the ICC has jurisdiction although Israel is not signatory to the Rome Statute.
Both Israel and the US reject the court’s jurisdiction. Trump’s order said the US and Israel “are thriving democracies with militaries that strictly adhere to the laws of war”.
“Trump’s view of international justice is that it’s for other people, not for Americans or their allies. There have been elements of this position that the US government has maintained since the original negotiations of the ICC in Rome,” said Kenneth Roth, a visiting professor at the Princeton School for Public and International Affairs in the US.
The US supported the ICC’s arrest warrant for Russian President Vladimir Putin on charges of war crimes in Ukraine. Russia is not an ICC state member, but Ukraine is.
Trump’s executive order declared that any effort by the ICC to investigate Israel constitutes “an unusual and extraordinary threat to the national security and foreign policy of the United States”.
The threatened sanctions affect all the judges and 900 staff members of the ICC and their immediate family members, who will not be allowed to visit the US. The order could also affect the blocking of the US property and assets of the court’s staff and family members.
ICC Prosecutor Karim Khan is the first person to be hit with Trump’s economic and travel sanctions.
According to Reuters, which spoke to sources briefed by US officials, Khan, a British citizen, was named in an annex to the sanctions that has not yet been made public. The order directed US Treasury Secretary Scott Bessent, in consultation with US Secretary of State Marco Rubio, to submit a report within 60 days naming people who should be sanctioned.
The ICC called on its member states and global civil society to “stand united for justice and fundamental human rights.” It pledged to continue “providing justice and hope to millions of innocent victims of atrocities across the world.”
The 79-state statement regretted “any attempts to undermine the court’s independence, integrity, and impartiality,” without naming the US. The sanctions would severely undermine all situations currently under investigation, as the court may have to close its field offices, it said.
Although France came out in defence of the ICC, it still allowed Netanyahu’s plane to fly over its airspace twice in one week on his way to and from Washington. Trump’s sanctions were issued during the Israeli prime minister’s visit to the US.
Observers say that the US sanctions represent an extraordinary misuse of executive authority by the office of the US president. The sanctions affect banks servicing the court, the interpreters and staff working on victim issues, NGOs and rights activists, and even the Rome Statute that established the ICC.
“The scale and breadth of this executive decision is one that I think is hopefully going to be found illegal and unconstitutional for the sake of the international community,” said William Pace, the former convenor of the coalition for the ICC, a global NGO network comprising more than 2,500 civil society organisations in 150 countries.
Trump, convicted in the US of 34 felony charges including of illegally influencing the 2016 US elections, has shown disdain for the rule of law both domestically and internationally, observers say.
He has been forthcoming about Israel’s exceptionalism, much in line with his predecessors, and he also wants to thwart any future attempts by the court against the US, said David Philips, a professor in Georgetown’s University’s School of Foreign Service in the US.
The EU has enacted what is called a blocking statute that prohibits compliance by EU operators with any requirement or prohibition based on specified foreign laws. This ensures the operations of the court and its personnel, said Roth.
“But it has to move quickly. Everybody has seen this coming, and hopefully they will be ready to move so that the court can continue to do its important business,” he said.
* A version of this article appears in print in the 13 February, 2025 edition of Al-Ahram Weekly
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