Trump’s War on the ICC: Sanctions, Power, and the Erosion of Justice
A week ago, the Senate blocked the “Illegitimate Court Act” that had passed through the House with bipartisan support. The Act was aimed at sanctioning the International Criminal Court (ICC) because it issued warrants against Israeli Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant for accusations of crimes against humanity and war crimes committed in Gaza.
This was the second time that the same act was blocked in the Senate over the course of the last year because its scope was too broad according to Senate Democrats, and would impede the U.S. government’s ability to cooperate with the Court on issues it deemed important. They preferred a more narrow focus, one that would allow the U.S. to discourage the ICC from pursuing cases it didn’t want pursued, but at the same time allowed the U.S. to pressure the Court into pursuing its adversaries. Essentially, the Republican approach was a crippling blanket ban on the ICC, while the Democrat one was to tailor the Court to be an extension of U.S. political will.
I predicted that this would not be the last attempt against the Court, and that the possibility of an executive order loomed large when the Senate blocked the Act, not because of any prescience on my part but because Trump took similar actions during his first term when he issued an executive order against the ICC when it sought to investigate war crimes by U.S. troops in Afghanistan.
The Executive Order
Yesterday, Trump predictably issued the executive order to Impose Sanctions on the ICC, two days after his meeting with the Israeli Prime Minister.
This EO asserts that the ICC’s actions present a dangerous precedent that could endanger U.S. personnel, expose them to risk of international criminal prosecution, and infringe upon American sovereignty, while undermining its national security and foreign policy work and that of its allies.
The order stated that it expects U.S. allies to oppose actions against the U.S. and Israel (or any other ally that does not consent to ICC jurisdiction), while asserting that the U.S. remains committed to accountability and the international order.
The sanctions include blocking property and interests in the U.S., for any person who engaged or assists the ICC to investigate or otherwise pursue a protected person, or have materially assisted in any way the Court’s activities or those who support its activities. It prohibits donations to those affected by the EO, whether in the form of funds or services. It further suspends entry to the U.S. for the persons affected, and applies to any transaction that evades or avoids the prohibitions of the EO. The EO also specifies that it applies to those who have a constitutional presence in the U.S., without prior notice, and is not limited to foreign persons.
This can be interpreted quite broadly, if the U.S. government chose to do so, to encompass banks and service providers including providers of information security services, and for all intents and purposes paralyze the court and its activities. It would not only impede the ICC’s ability to pursue the U.S. and Israel, but also its ability to pursue other cases and violations of international law around the world.
This was the concern voiced by the Democrats. This broad scope of action against the Court essentially reduces the American government’s ability to engage with the ICC on cases it supports, such as the cases against the Russian President, and deprive itself from a useful tool on the international stage that it can use to pressure its adversaries when it chooses to do so.
The EO aligns with the broader direction of the new administrations approach to international law and multilateralism. President Trump has already withdrawn from the World Health Organization, the Paris Climate Accords, the UN Human Rights Council, and defunded various UN agencies. He has shown disregard for existing alliances and basic international legal norms, whether through threats of territorial seizure in Greenland or Panama, or through suggesting what essentially amounts to ethnic cleansing in Gaza as a solution to the Israel-Palestine conflict. Most recently, the U.S. has stated its intention to skip the G20 meeting in South Africa because of its focus on climate change.
Taken in that context therefore, the EO is consistent with the Trump administration’s general direction on foreign policy, specifically that of disengagement and distancing from any frameworks that he views as encumbrances on the pursuit of his immediate -rather than U.S. long term- goals.
The EO does not add any protections to American personnel, which are already well protected by the bill passed in 2001 regarding the protection of U.S. personnel from prosecution by international criminal courts to which the U.S. is not a party, and the Article 98 agreements with states members to the ICC guaranteeing that they would not hand over U.S. personnel to the Court in any cases.
This EO therefore is serves exclusively to punish the ICC for pursuing charges against Israeli officials, and there are various reasons incentivizing this decision. The most important one is that U.S. law precludes the American government from disbursing funds to foreign forces credibly accused of gross violations of human rights. This would severely impede U.S. foreign policy goals in the region, which have been served well by using Israel as a battering ram against U.S. adversaries in the Middle East.
Under Biden’s administration, the U.S. contradicted the International Court of Justice’s advisory opinion on Israel’s violations of international humanitarian law and the application of the Convention on Genocide, and strongly rebuked the ICC for its warrants against Israeli officials for the same reason. If those were to pass, and Israeli officials were to be charged or found guilty of those crimes, the U.S.’s own domestic laws would prevent it from pursuing its national interests in the region through the provision of weapons and equipment to Israel.
Biden’s administration engaged and debated, and persisted in its pursuit of broader foreign policy goals while largely dismissing international legal norms, it did so without framing itself as being an adversary of the entire international legal system. In doing so, it maintained its leverage on the system and members of the international community through these same mechanisms. The Trump administration however favored isolationism and disengagement, and rather than keep the strings in its hands to tug and pull at the system to American advantage, it opted to dismiss the system entirely.
The Impact
Already in the hours since the EO was issued, there has been significant international response. In a joint statement, 79 countries have reaffirmed their unwavering support for the ICC, emphasizing that it serves as a pillar of the international justice system, and for accountability for the most serious international crimes. They state that the sanctions against the court encourage impunity from the law, erode international rule of law, and undermine all the Court’s ongoing investigations.
For a joint statement to be issued so swiftly, and with the inclusion of numerous EU and NATO allies, many of whom have been stalwart supporters of U.S. for extended periods of time signals the growing rift since Trump’s assumption of the presidency. It also indicates that the EO was issued without prior coordination with their governments, and while predictable, it did not grant them enough time to confer and explore options with the U.S. as alternatives to this action.
The ICC has also condemned the EO in an unusually blunt challenged to the U.S., where it called on its 125 members to stand in solidarity and support of the Court and its work protecting international human rights law.
On the legal side, the potential implications of this EO vary depending on the extent of compliance by the international community and how vigorously the U.S. will implement it. On the one end of the spectrum, it may be purely a political message, with little implementation and therefore largely symbolic value, reaffirming the U.S. position in support of Israel. It could alternatively manifest as a full paralysis of the Court if it were strictly enacted by the U.S. and complied with by institutions across the world. Few, if any, banks or organizations with interests in the U.S. would risk facing sanctions on their assets to support one organization even if it were the ICC.
Given the joint statement by the abovementioned countries however, there is a possibility that this issue will serve to drive another wedge between the U.S. and its allies, particularly in Europe. Adding to the growingly disparate positions between the Western allies, this position, so soon after Trump’s suggestion to displace the entire Palestinian population, is becoming difficult for American allies to contain.
One of the main sources of legitimacy claimed by the U.S. and the West has been the preservation of an international rules-based order founded on international law. While this was largely seen as duplicitous, it was hailed as an imperfect but evolving system that held state actors to at least a semblance of standards on the global arena. For the U.S. to lead the charge against this same order presents a significant threat to European nations, particularly in the current circumstances as they seek to rally international support against Russia in Ukraine. By undermining the ICC, it lends support to actors who seek freedom from the constraints of international law in the pursuit of their interests and weakens the accountability framework of the international justice system.
In this sense, the U.S. has framed itself as an adversary to the international legal architecture, and rather than seeking to manipulate it from within and tailor it to its own needs, instead it opted to attack its foundations.
Was it Necessary?
With the protections already in place for U.S. officials as we explored above, the question remains: was this action by the U.S. necessary to achieve the stated aims, namely the protection of Israeli officials from prosecution by the ICC?
There were numerous alternatives available to the U.S., including effective engagement with the court, and engagement with allies who are members to disregard the Court’s decisions, several of which (like France and Poland) have already publicly stated that they do not believe in the validity of the Court’s warrants against Netanyahu or other Israeli officials.
It could have also brokered agreements with its partners and allies akin to the Article 98 agreements that guarantee protections for U.S. officials, all of which would have been operable within the framework of the law itself. Article 98 of the Rome Statute that founded the Court (for which those agreements are named) prohibits the ICC from pursuing requests for surrender of people that would violate the members’ international agreements; in essence if member states entered into a bilateral agreement not to hand over Israeli officials, the issue would be resolved.
The workaround would have undermined the credibility of the ICC of course, but could have been worked out through mechanisms clarifying the non membership of Israel, arguing against jurisdiction, and other legal tools, and would have incurred considerably less damage to the credibility of the U.S. on the international stage, and would not have impacted the future of international law with as much gravity as the current decision.
With that in mind, it therefore appears to be a very calculated and deliberate act on the part of the American administration to signal its disdain for and non-adherence to international legal norms. It indicates that this administration, as has been reflected in actions since Trump’s inauguration, non only does not abide by the current international legal system, but is actively working to dismantle it in favor of a more unrestrained global system where it is free to leverage its perceived hegemony unencumbered. Trump’s EO, it seems, was only about protecting Israel but also about continuing to unshackle his administration from adherence to international systems that it views as antagonistic to its immediate interests.