US President Donald Trump’s economic sanctions on the International Criminal Court (ICC) are hampering the tribunal’s operations in The Hague, threatening its role in global justice.

In early June, the US government sanctioned four ICC judges, including two pre-trial judges involved in issuing arrest warrants in November for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant, and two who approved a 2020 Court investigation into alleged US war crimes in Afghanistan. These sanctions represent an escalation of the campaign against the ICC begun in February when President Trump targeted ICC Chief Prosecutor Karim Khan in retaliation for the Court’s issuance of the arrest warrants for the Israeli leaders.

The measure has brought the tribunal’s day-to-day operations to a near standstill, raising existential concerns about its future. ‘We need the court to be able to continue to make healthy progress,’ says Federica D’Alessandra, Co-Chair of the IBA Rule of Law Forum. ‘Its capacities and its role in the international security landscape must be preserved.’

The next four years are going to be critical, says D’Alessandra, who’s the British Academy Global Innovation Fellow with the Global Order and Institutions Program at the Carnegie Endowment for International Peace in Washington, DC. ‘The priority now is to contain the damage that this sanctions order can do directly to the court,’ D’Alessandra says, and ‘to develop strategies – particularly among European allies – to balance engaging with the Trump administration to make sure that the Court is not annihilated.’

The four ICC judges sanctioned in June were Judge Reine Alapini-Gansou, of Benin, Judge Beti Hohler, of Slovenia, Judge Solomy Balungi Bossa, of Uganda, and Judge Luz del Carmen Ibáñez Carranza, of Peru. EU Member State Slovenia swiftly condemned the sanctions and called for the EU to adopt blocking measures.

European Commission President Ursula von der Leyen joined in condemning the sanctions, saying on social media that the EU fully supports the ICC, which ‘must be free to act without pressure’. Others called for collective resistance.

‘It's extremely important that ICC countries and the international community that supports justice for victims of the worst crimes, speak out, push back and make clear that they continue to believe deeply in the mission of the International Criminal Court,’ says Elizabeth Evenson, Director of the International Justice Program at Human Rights Watch in Washington, DC.

In April, the American Civil Liberties Union (ACLU) filed a challenge in US District Court in Maine on behalf of two human rights workers. The lawsuit argues that Trump’s sanctions violate their free speech rights and that he acted outside of his authority as president. 

The Open Society Justice Initiative (OSJI) filed a similar lawsuit in US District Court in New York on behalf of law professors who do work for the ICC. President Trump’s threat of civil and criminal penalties, including up to 20 years in prison, for providing advisory services to the Court is an unconstitutional restriction on free speech, the OSJI complaint says.

US Justice Department officials have asked courts to reject the ACLU and OSJI free speech claims on the grounds that the executive order ‘is a content-neutral restriction that advances important governmental interests unrelated to the suppression of free speech’ and ‘is narrowly tailored to a compelling governmental national security and foreign policy interest’. 

US economic sanctions are powerful because of the dollar’s role as the world’s reserve currency. They’re typically aimed at nations hostile to the US such as Iran and North Korea, or terrorist groups – not multilateral bodies operating under UN auspices.

‘The sanctions are a bad idea in this context,’ says Beth Van Schaack, former Ambassador-at-Large for Global Criminal Justice under President Biden. ‘Ultimately, it’s not going to achieve what they want to achieve. And it’s weakening our position internationally, because it’s seen as such an inappropriate use of a tool that otherwise has been applied to drug kingpins and terrorist organisations.’

Todd Buchwald, who held the same ambassadorial role earlier under President Barack Obama, argues the sanctions will alienate allies and prompt them to develop alternative mechanisms to support the Court. ‘Almost all our allies – except for Israel and Turkey – are longstanding supporters of the ICC. Some have misgivings about what the ICC has done, but the Court is widely viewed as the emblematic vanguard of international efforts to promote the rule of law, and protect against atrocities,’ Buchwald says. ‘If you put yourself on the wrong side of that equation, it paints a picture of a United States that doesn’t care about justice and is on the side of the bad guys.’

Some commentators see Trump’s moves against the ICC as part of a broader ideological pivot, intentionally isolating the US and disrupting the international order. ‘We’re in this massive transition in the outlook for multilateral cooperation and the [role of the US] as a leader internationally,’ says Cora True-Frost, a professor of law at Syracuse University.

But given emerging global challenges such as the climate crisis, pandemics and artificial intelligence in warfare, multilateral cooperation is only becoming more vital.

Legal institutions will require capacity to act as well as legitimacy. Worryingly, President Trump’s sanctions are eroding both, says Mark Ellis, Executive Director of the International Bar Association, which has condemned the US actions. ‘The Court has no police force. It has no army. Its mandate is to do the critical legal work. That is its responsibility,’ Ellis says. ‘The international community must uphold these universal legal principles by backing the Court. If there is no political willingness to do so, then the Court is no longer viable.’

‘At this moment, both components – legal and political – are being weakened and this presents an existential threat to the future of international justice,’ says Ellis.

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