As the US wages a sustained campaign against the court, Europe seems ambivalent about its response.
Two tweets, sent five months apart, provide a stark illustration of falling support for the International Criminal Court (ICC) in the face of US sanctions against it.
The first was sent by Slovenia, after President Trump sanctioned the court’s chief prosecutor, Karim Khan, in February, and it revealed a protest letter against the sanctions signed by 79 nations. When the US subsequently sanctioned four ICC judges, Mexico tweeted a second protest letter in July. This time, only 48 states signed.
That’s less than half the 125-nation ICC membership, and it is notable that many heavy-hitters, including Canada, Germany, and Greece, having signed the first letter, declined to sign the second.
This loss of confidence was visible in more tangible form at the court’s much-anticipated review conference for the crime of aggression in July. This offense criminalizes aggressive war, but it contains a catch. ICC member states are allowed to opt out of its provisions, in effect giving themselves immunity, and 78 countries have done just that.
The review conference in New York was supposed to iron out this inconsistency, with critics pointing out it harms the court when states can choose not to apply the rules.
However, member states refused to close the loophole, preferring instead to kick the can down the road. Their only decision, after three days of intense debate, was to hold another conference in four years’ time to decide the issue. This failure to grasp the nettle has done nothing to bolster the credibility of a court struggling on other fronts.
The ICC is not part of the UN, and its power comes only from the willingness of member states to enforce the rules. Increasingly, they are refusing to do so. Many routinely offer immunity from arrest to their allies. More than a dozen have given it to Israel’s Benjamin Netanyahu, charged over the Gaza war, while Mongolia has given it to Vladimir Putin, charged with the Ukraine invasion.
South Africa has given it to Sudan’s former president, Omar al-Bashir, charged with genocide, while Italy gave it to an indicted Libyan general.
This has left court officials worrying that, with so few arrests, it will run out of cases to try. From January, it will have only one trial on the docket, that of former Philippine President Rodrigo Duterte. Once that is done, without new arrests, the court may need to be mothballed for the lack of new trials.
Meanwhile, it is shuddering under allegations aimed at Khan of sexual harassment and retaliation against alleged victims. He has denied these, but has stepped down until an investigation has been reported, adding to a sense of an organization in profound crisis.
In contrast to the chaos at the ICC, the Trump administration’s sanctions on court staff are laser-focused. The aim of the sanctions is to get the court’s member states to agree on blanket immunity for Israeli officials.
In doing this, Trump has highlighted another ICC inconsistency, because most states, including the European Union, already give arrest immunity to Americans. This immunity dates from 2003 when the EU, under pressure from the Bush Administration, conferred immunity on any American indicted by the ICC, provided they are employed by the US government.
Giving arrest immunity is allowed through a provision in the ICC rules, Article 98, allowing member states to give immunity to officials of any other state. Trump’s argument is that, having given it to Americans, Europe can do the same for Israelis.
The US sanctions include travel bans on ICC officials and a freeze of any US assets they hold, with the bans also including their immediate family. The executive order also includes the power to fine US companies doing business with the court, which Hague officials fear may see it lose banking and software services.
The campaign to rein in what the administration regards as an instinctively anti-US international organization saw it extend sanctions to the UN’s Palestine Rapporteur Francesca Albanese, accusing her of “unabashed antisemitism”. The US maintains that, although Albanese does not work for the ICC, her advocacy for charges against Israelis and US companies supplying Israel means she is assisting the court.
Of the four ICC judges sanctioned, two are from a panel that indicted Netanyahu, two more from another that allowed Americans to be investigated for Afghanistan war crimes.
However, not all panel members were sanctioned. For the Netanyahu indictment, judges from Benin and Slovenia were penalized, but the third, from France, was spared. Court officials read that as a thank-you from Trump to Paris, because earlier this year it gave Netanyahu arrest immunity.
Similarly, two Afghanistan panel judges from Uganda and Peru were sanctioned, but three others, from Canada, the UK, and Poland, were not. Again, this may be related to Poland giving Netanyahu immunity and is designed to persuade the UK and Canada to do likewise. Notably, all three states refused to sign last month’s sanctions protest letter.
But while the ICC’s powers wither, war crimes justice in national courts is in rude good health in Europe, notably in Ukraine. That country’s national police war crimes division has catalogued 124,500 incidents committed since Russia’s February 2022 invasion, and its courts, assisted by several European countries, have begun indictments and trials.
And while opposition to the ICC is one of the few things that unites America’s Republicans and Democrats, Congress has given powers to US courts to hold their own war crimes trials. The first such conviction came in April when a Gambian was jailed in Colorado for torture while serving in a notorious death squad in his home country.
Human rights groups complain that Trump’s sanctions may break the ICC, but the deeper problem lies within the court itself. In its 22-year existence, despite investigating 17 wars, it has convicted just six war criminals. With such a poor return, many member states wonder if the court is worth saving.