What’s happened: Yesterday, President Trump signed an executive order imposing sanctions on the International Criminal Court and its leaders as Israel withdrew from the United Nations Human Rights Council.
- The executive order states that President Trump found that the “International Criminal Court (ICC), as established by the Rome Statute, has engaged in illegitimate and baseless actions targeting America and our close ally Israel” while asserting that it had “without a legitimate basis, asserted jurisdiction over and opened preliminary investigations concerning personnel of the United States and certain of its allies, including Israel, and has further abused its power by issuing baseless arrest warrants targeting Israeli Prime Minister Benjamin Netanyahu and Former Minister of Defence Yoav Gallant.”
- The White House has also condemned the ICC for drawing a false equivalence between Israel and Hamas for issuing arrest warrants for Netanyahu and Gallant at the same time as the terrorist group’s leaders (who were already dead). It warned that a dangerous precedent had been set which could endanger Americans by exposing them to “harassment, abuse and possible arrest.”
- The ICC’s insistence on undertaking investigations against Israel and the US, despite lacking jurisdiction over those countries as they never joined the Rome Statute, are democracies, and strictly adhere to the laws of war is the main reason for these sanctions being applied.
- President Trump’s executive order mentions ‘lack of jurisdiction’ no fewer than six times.
- These sanctions have the effect of freezing ICC officials’ assets and preventing them from visiting the US. Given how widely expected it was, the ICC has now begun paying staff salaries three months in advance.
- Israel responded warmly, with Foreign Minister Saar tweeting that he strongly commended the sanctions. Saar wrote that the “ICC aggressively pursues the elected leaders of Israel, the only democracy in the Middle East”, its actions “are immoral and have no legal basis”, and court undermines rather than promotes international law.
- The ICC has condemned the sanctions, accusing the US of seeking to harm its “independent and impartial judicial work” while standing by its personnel and pledging “to continue providing justice and hope to millions of innocent victims of atrocities across the world, in all Situations before it.”
- Concurrently, Israel joined the US in withdrawing from the United Nations Human Rights Council (UNHRC), confirming that it “will not participate” in its activities” after Foreign Minister Saar accused it of antisemitism. Saar also said that the decision “was reached in light of the ongoing and unrelenting institutional bias against Israel in the Human Rights Council, which has been persistent since its inception in 2006”.
Context: Israel and the US have long had an antagonistic relationship with the ICC, and President Trump’s announcement is neither surprising nor unprecedented.
- The ICC was established in 2002 following the entry into force of the Rome Statute (1998). It has the mandate to prosecute individuals (rather than groups or States) responsible for the crimes of genocide, crimes against humanity, war crimes, and also the crime of aggression (a crime which came into force in 2017).
- The ICC’s decision against Netanyahu and Gallant in November 2024 marked the first time that arrest warrants were issued for the elected leaders of a democratic state. It meant that Netanyahu and Gallant are functionally unable to travel to over 120 countries which are signatories of the Rome Statute, including the UK, without fear of arrest by local authorities.
- The Rome Statute’s preamble states that the ICC “shall be complementary to national criminal jurisdictions”, and under the principle of complementarity only has distinction if a state is “unwilling or unable to genuinely carry out the investigation or prosecution.” Israel argues that its independent court system means this is not the case.
- The US signed the Rome Statute under President Clinton’s administration, but never submitted the treaty to the Senate for ratification. In 2002 President Bush effectively reversed this decision by advising the United Nations he no longer intended to do so and had no obligations towards it.
- In March 2020, the ICC announced that prosecutors had been given the green light to investigate alleged war crimes and crimes against humanity in Afghanistan linked to Afghan, Taliban and US troops (notwithstanding that the US is not a state party). Following this decision, President Trump also issued an executive order sanctioning the ICC and its officials.
- In March 2021, the court announced it would be investigating Israeli conduct in the West Bank, East Jerusalem, and Gaza Strip since 2014 (suggesting in-build prejudice, the date of the investigation was chosen to explicitly exclude the Hamas kidnapping and murder of three teenagers but notably didinclude the ensuing war between Israel and the group in Gaza).
- In a 2-1 ruling, a Pre-Trial Chamber at the ICC ruled on Friday 5th February 2021 that the court has territorial jurisdiction in the West Bank, East Jerusalem and Gaza. Two of the judges, Marc Perrin de Brichambaut of France and Reine Adélaïde Sophie Alapini-Gansou of Benin, accepted the premise that since the Palestinian Authority (PA) joined the Rome Statute, it should be treated as a state. The dissenting judge, Péter Kovács, rejected the argument that the PA is a state and that it therefore does not constitute the required “state inside whose territory the said actions took place.” Kovács wrote that he “felt neither the Majority’s approach nor its reasoning appropriate in answering the question before the Chamber” adding that in his opinion “they have no legal basis in the Rome Statute, and even less so, in public international law.”
- As part of a policy of ‘internationalisation,’ the PA has long sought to involve the ICC in its dispute with Israel. As the weaker party in the conflict, the PA has attempted to change the “balance of power” by moving the playing field from bilateral negotiations mediated by the US into the multilateral legal realm where it feels it has a greater advantage.
- Israel had the status of an observer on the Human Rights Council. It previously withdrew from the Council in 2012 and returned in 2015.
Looking ahead: These sanctions are unlikely to immediately prevent or deter the ICC from continuing its investigations into Israel. However, it has been warned by former employees that they may have a significant impact on the court’s ability to operate effectively
