The International Criminal Court has been robust in seeking to hold Vladimir Putin and Benjamin Netanyahu to account for war crimes. But, the Trump administration is seeking to dismantle it.

When the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin for war crimes in Ukraine, the US government called it ‘justified’. When the Court issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former Minister of Defense, Yoav Gallant, for war crimes and crimes against humanity for their conduct in Gaza, the US President at the time, Joe Biden, called it ‘outrageous’. Now, the Trump administration has imposed sanctions on ICC officials and has vowed to ‘dismantle’ the institution.

This ‘double standard’ is ‘not surprising’, says Sara Segneri, Vice-Chair of the IBA War Crimes Committee. ‘The US has always had a different standard when it comes to Israel or the question of Palestine,’ she says.

The US most recently imposed sanctions on Japanese ICC President Tomoko Akane and Abdoulaye Seye, a Senegalese lawyer involved in the investigation of alleged crimes in Gaza. The ICC called the sanctions a flagrant attack against the independence of an impartial judicial institution. ‘When judicial actors are threatened for applying the law,’ the ICC said in a statement, ‘it is the international legal order itself that is placed at risk.’

Washington was ‘comfortable’ with the idea that international criminal law should reach Russian leaders, says Kamari Clarke, Distinguished Professor of Transnational Justice and Sociolegal Studies at the University of Toronto. ‘But when the Court turned its attention to Benjamin Netanyahu and Yoav Gallant, suddenly the language changed. Then we heard arguments about jurisdiction, complementarity and the legitimacy of the Court’s involvement. Those arguments are legally relevant, but politically the inconsistency is difficult to ignore,’ she says.

A history of sanctions

It was reported in late September that the Trump administration is preparing further sweeping sanctions against the entire ICC, which would prohibit any transactions in US dollars and thus cut the institution off from most of the global financial system.

During President Trump’s first term, his administration had also imposed sanctions on ICC officials. Chief Prosecutor Fatou Bensouda and Phakiso Mochochoko, Head of the ICC’s Jurisdiction, Complementarity and Cooperation Division, were targeted for pursuing an enquiry into the conduct of US forces in Afghanistan. The sanctions were later lifted by the Biden administration because even though they also disagreed with the investigations into US service personnel, his government found its concerns were ‘better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.’

‘The ICC is not a threat to US sovereignty,’ says Stephen Rapp, the former US Ambassador-at-Large for War Crimes Issues. Even though the US and Israel are not signatories to the Rome Statute, the Court still claims jurisdiction over crimes committed by their citizens if they take place in the territory of States Parties, such as Palestine and Afghanistan. It will only pursue such cases if domestic courts – in this case US or Israeli courts – fail to conduct ‘genuine’ investigations or prosecutions themselves, with the Court being used as a last resort.

‘During my six-year tenure as US Ambassador-at-Large for Global Criminal Justice we were able to avoid the opening of ICC investigations regarding US conduct. Where such investigations were a possibility, I thought the possible involvement of the ICC was helpful in encouraging reluctant agencies to investigate and to provide information about what they had done,’ says Rapp, a member of the IBA’s Human Rights Institute Council.

The ICC enquiry into UK military conduct in Iraq is a telling example of the use of the Court as a last resort. Even though evidence of war crimes was found, the Office of the Prosecutor concluded that there were no issues with the UK’s own internal investigations into the matter and closed the enquiry. This case should have ‘served as an indicator’ for the US, which has ‘robust military justice and civilian criminal justice systems,’ says Segneri, also a partner at Confinium Strategies.

‘However, under the present administration, it is questionable as to whether prosecutions for war crimes would occur. I would hope Trump’s legal advisors, and those within the Department of Defense, would focus more on ensuring their actions are in compliance with international (and domestic) law, rather than pursuing the dismantling of the international legal order and international institutions,’ says Segneri.

Prosecuting the powerful

Contrasting responses to arrest warrants raise an important question about the state of international criminal justice. While the apparent contradiction in the universal application of international law is ‘dangerous for the court’, it is also revealing, says Clarke. ‘It forces us to confront the fundamental question: is international criminal law really a law for everyone, or is it ultimately an accountability system whose boundaries are determined by geopolitical power?’ she says.

The Trump administration has said it will exercise ‘Increased scrutiny of nations that refuse to reject the ICC’s false authority while relying on US assistance.’ Should the US decide to pursue more aggressive pressures, more countries could feel forced to withdraw based on economic pressures or out of fear of US military engagement, says Segneri.

‘States seeking a special relationship with the US might prioritise other interests over their membership of the ICC, in order to avoid backlash in other areas,’ says Markus Beham, Co-Chair of the IBA Human Rights Law Committee.

The ICC may need to address the grievances of African states, so that the US cannot use them in its quest to undermine the court. ‘The ICC cannot simply respond by telling states that they must remain loyal to the Rome Statute,’ says Clarke. ‘It also has to address the underlying legitimacy problem: why do so many states believe that international criminal law is applied selectively?’

‘What concerns me is that withdrawal is becoming a broader political strategy influenced by Washington to challenge the Court. If enough states withdraw, refuse to cooperate, or openly challenge the Court, the ICC, while legally intact, could become increasingly difficult to operate in practice,’ says Clarke.

There is also another aspect to the US campaign. ‘Many States Parties are showing their support for the ICC and almost all are current in paying their dues, making it one international institution that does not have budget problems. Standing up to President Trump has also proven to be good politics for leaders of many democratic states,’ says Rapp.

A similar campaign against the ICC led by the George W Bush administration did not result in bringing it down. His government forced countries to sign bilateral immunity agreements for US citizens from ICC prosecution, and cut assistance programmes to those that didn’t.

‘This is hardly the first US government vendetta against the ICC, but Washington has utterly failed in its efforts to undermine the court,’ says Roth.

Defence of the court

It is no surprise that Netanyahu, who has called the ICC a ‘kangaroo court’, has supported Washington’s campaign against it. But others have defended the Court. European Commission President Ursula von der Leyen and European Council President António Costa have expressed their support for the international court. ‘The ICC helps deliver justice to the victims of some of the world’s most horrific crimes. To carry out this essential work, its judges and officials must be able to act independently and without external pressure,’ said von der Leyen.

In a joint statement, a group of UN experts said the Court faces an ‘unprecedented attack’ and called on states to ‘act immediately to mitigate the impact of these measures against judges, prosecutors and staff of the ICC.’ If the US campaign to dismantle the ICC succeeds, ‘it will roll back international criminal accountability gains against impunity forged in the fires of Nuremberg and Tokyo, and the International Criminal Tribunals for the former Yugoslavia and for Rwanda; and extinguish hope for victims of the gravest atrocity crimes,’ they said.

Since the 18 August designations, nine of the 18 ICC judges, both Deputy-Prosecutors, the former Prosecutor, and one staff member have now been sanctioned by the US, according to the ICC. Germany and the Netherlands have denounced the sanctions imposed by the US.

An Associated Press investigation last year revealed how the sanctions on then-Chief Prosecutor Karim Khan, alongside the threats of arrest of US ICC personnel upon returning home and the fear felt by some US-based organisations if they continued their cooperation with the ICC, were paralysing the Court’s work.

There are measures supportive states can take to protect the ICC from the effects of the sanctions. ‘Regional blocs, such as the EU and AU, should deepen their positions and support for the Court, most notably by enacting a blocking statute to protect against the US sanctions on court personnel,’ says Segneri.

Human Rights Watch, together with the American Friends Service Committee, the Center for Constitutional Rights and the Open Society Foundations, are challenging the designations in court. With the Court’s president, Tomoko Akane, now sanctioned, there may be a role to play for Japan. ‘The Japanese government should build on its longstanding support for the ICC by strongly condemning the Trump administration’s attacks on the Court and work with other ICC member countries to protect the Court’s critical global mandate,’ says Kanae Doi, Japan Director at Human Rights Watch.

What comes next?

The latest attack by the US on the ICC came just after the Court’s States Parties had voted to remove Prosecutor Khan over sexual misconduct allegations, which he denies. The turmoil of the months-long internal procedure has not helped the perception of the Court.

Of the 125 ICC member states, 82 voted in favour of Khan’s removal. The vote took place after a referral by the ICC’s governing body, which suspended the Prosecutor, but left it up to States Parties to decide his fate. Khan went on voluntary leave last year after accusations from a member of his staff of coercive and non-consensual sexual behaviour were under investigation. Khan has denied the allegations. His deputies have been running the Office of the Prosecutor and it is unclear who his successor will be. The US and Israel have welcomed his removal.

With Khan now gone, elections for a new Chief Prosecutor may soon be underway. The course this new mandate-holder takes will be crucial for the future legitimacy of the Court. The upcoming trial in the Hague of former Philippines President Rodrigo Duterte for crimes against humanity allegedly committed during his ‘war on drugs’ could be significant. The Duterte arrest ‘demonstrated that an ICC arrest warrant does not necessarily remain symbolic forever. Political circumstances change. Governments change. Leaders who once appeared completely beyond the reach of international criminal law can suddenly become vulnerable to arrest. That temporal dimension of international justice is important to consider,’ says Clarke.

Between 6,000 (the official count) and 30,000 (according to human rights groups) people were killed during the eight-year-long campaign. Duterte is being held in the Netherlands, waiting to face trial later this year in The Hague. ‘It is very important that the ICC prosecutor succeeds in the Duterte case, to overcome the failures in the cases of other high level state actors, such as Kenyatta, Ruto, Gbagbo and Bemba,’ says Rapp. He also says that a ‘strategy for leveraging state support’ for arrests and transfers of fugitives will be necessary.

Extending the Court’s work beyond the Global South and pursuing different kinds of cases are also important. ‘The legitimacy and importance of the Court and Office of the Prosecutor going forward will largely depend on whether they pursue investigations and cases globally, expanding the focus beyond the Global South, but also to become more creative and innovative in their approach to cases. For example, looking at corporate actors, aiding and abetting, or other aspects of liability. The Court also needs to utilise its own sanctions authority, and issue targeted individual sanctions alongside arrest warrants, in order to freeze funds and assets to be repurposed for reparations following convictions,’ says Segneri.

Overall, the independence of a new Chief Prosecutor should be the top criteria, says Roth. ‘It is essential that all candidates to become Chief Prosecutor insist on their complete independence.’

Yola Verbruggen is a freelance journalist and can be contacted at yolav@protonmail.com

Header image: www.flickr.com/UN Photo/Rick Bajornas