The United States against the International Criminal Court

WashingtonThe United States has opened a new diplomatic front this week. Donald Trump's administration has once again declared war on the International Criminal Court (ICC) with a campaign of pressure to dismantle the body that tries those responsible for war crimes, genocides, and crimes against humanity. The offensive, announced this Monday by Secretary of State Marco Rubio, adds a new episode to the White House's long history of attacks on the Hague court.

In a video posted on social media on Monday, Rubio lashed out at the ICC, accusing it of "waging war" against the country and vowing to dismantle it "piece by piece." The head of diplomacy not only anticipated more sanctions against ICC members – a measure already applied on other occasions – but also called on all countries under "US security umbrella" to "reject the authority" of the court, under threat that Washington will review its military support if they decide not to do so. However, Adil Ahmad Haque, a law professor at Rutgers University, sees it as "unlikely that the United States will manage to convince more than a few states to withdraw from the ICC." He points out that, even if some states were to do so, "this withdrawal will not be effective for up to a year. During this period, the court will continue to have jurisdiction over any crime committed in its territory, and these states will continue to be obliged to cooperate with it."

The Secretary of State said that the body constitutes a threat to American sovereignty and to other states. The Hague court, founded in 1998 with the Rome Statute, was created to help its member countries apply international law. However, the court only has jurisdiction over the citizens of those territories that have joined it. And the United States decided to stay out of the ICC.

In 2002, with the Guantanamo prison beginning to operate, George Bush decided not to ratify the Rome Statute to protect his soldiers and high-ranking officials from possible indictments because the court – unlike the UN's International Court of Justice, which also has its seat in The Hague – tries individuals and not states. The decision led to a tense relationship with the court and, in fact, it has worsened each time the ICC acted against Washington's allies or the U.S. military. During its first term, the Trump administration already adopted sanctions against the then chief prosecutor, the Gambian Fatou Bensouda, and another member of the court for having opened an investigation into possible war crimes committed by U.S. soldiers in Afghanistan. The Biden administration lifted these sanctions.

With his return to the presidency, Trump set out to finish the job he had started in 2017, and the ICC has been no exception. Washington's hostility towards The Hague escalated by leaps and bounds after the court issued an arrest warrant against Israeli Prime Minister Benjamin Netanyahu, and former Israeli Defense Minister Yoav Gallant, for crimes against humanity in Gaza. In response, the U.S. president signed an executive order applying a new package of sanctions against all ICC employees. This authorized everything from freezing their funds and access to their bank accounts to prohibiting them from entering the U.S., and also threatened monetary sanctions against any foreign person who provided assistance to the sanctioned members.

The sanctions against the ICC are also part of a broader agenda by the current US administration to pursue any kind of complaint against the apartheid that Israel applies to Palestinians and the genocide of Gaza, as established by international courts. One of the best-known cases is that of the UN Special Rapporteur on the situation of human rights in the occupied Palestinian territories, Francesca Albanese, who was included in the OFAC list and was banned from entering the US. In May of this year, Trump withdrew all sanctions against Albanese after a federal judge suspended them. However, there are still eleven members of the International Criminal Court who continue to suffer the same punishment as the rapporteur. Palestinian human rights organizations that have documented Israeli crimes for the court also continue to be sanctioned.

In defense of Netanyahu

Throughout this time, the United States has demanded that the court cancel the arrest warrants against Netanyahu and Gallant and dismiss the investigations into crimes committed within Palestinian territory. The White House has also pressured the ICC to amend the Rome Statute, its foundational text, which empowers it to prosecute heads of state for genocide, war crimes, and crimes against humanity, and to investigate the crime of aggression against a state by military force. The change Trump demands would require two-thirds of the 125 adhering countries to agree.

In this light, it is much more evident that the US announcement this week is an escalation of the pressure campaign against the body, to the point of reaching total war. It cannot be overlooked either that the decision comes just after the military intervention in Venezuela and the extrajudicial executions in the Caribbean Sea against alleged drug-trafficking boats, which have already claimed the lives of at least 200 people. The Pentagon's first attacks against these vessels had already alerted international law experts, and the military operation to kidnap Maduro was also harshly criticized by the international community as a flagrant violation of the law.

Several international law experts have warned that the White House's new move goes against the very system that the US helped to found. "The new position of the United States regarding the International Criminal Court continues the administration's pattern of not limiting itself to violating international law, but to attacking the very framework of international law. It represents a dangerous escalation that demands a clear and coordinated response," writes Tom Dannenbaum, professor of law at Stanford University.