Many applauded when Navi Pillay was awarded the Nobel peace prize. The South African human rights lawyer had chaired the UN commission of inquiry that found Israel to have committed genocide in Gaza and served for five years as a judge on the international criminal court (ICC).
Donald Trump responded a few hours later by imposing sanctions on the ICC. He chose a moment for celebrating the rule of law to try to undermine it.
Trump had already sanctioned 13 ICC judges and prosecutors, obstructing their access to credit cards, bank accounts and the modern economy. The new sanctions target the entire institution. If they take effect in six months as threatened, they would effectively bar all financial transactions with the court – and more.
They would starve it of cash; no banks would be able to do business with it. They could force internet companies to halt the court’s email and computer systems and telecom companies to cut its phones. And they would preclude human rights groups and victims from working with the court. Violators would risk penalties themselves.
The sanctions are the latest step in Trump’s effort to make the world safe for American and Israeli war criminals. He wants the ICC to agree, presumably during the six-month hiatus, never to prosecute the national of a country that has not joined the court, even when the individual commits a crime on the territory of a member state.
This is a battle that the US government fought and lost when the court’s founding treaty was adopted in Rome in 1998. The US position was repudiated overwhelmingly, with the treaty approved by a vote of 120 to 7.
In justifying the latest sanctions in the name of American sovereignty, Marco Rubio, the US secretary of state, conjured up images of the ICC prosecuting Trump officials as they detain migrants. That is scaremongering. The court has no jurisdiction over crimes committed inside the United States and never claimed it.
But other countries have a sovereign right to prosecute crimes committed on their territory, even if the perpetrator is an American or an Israeli. Ordinarily that would be done by a country’s regular courts, but if in extreme circumstances those courts were unwilling or unavailable, governments have a sovereign right to delegate that power to the ICC. That’s what joining the ICC entails.
The Trump-Rubio view is that the US and Israel have a sovereign right to commit war crimes wherever they want, and no other government has a sovereign right to have them prosecuted. That is laughable.
Fortunately, other governments see through the Trump-Rubio sophistry. Only Venezuela, which since Trump’s capture of former president Nicolás Maduro has become a US vassal state, and Chad, which receives significant US military aid, have heeded Washington’s call and announced plans to withdraw from the court. (Three Russian-backed military juntas in the Sahel have also announced an intention to withdraw for their own self-protective reasons.) Even if they all follow through, that would leave a solid 120 governments fully onboard.
Now they must act to defend the court.
The most important step would be for the European Union to invoke its “blocking statute”, which, when activated, prohibits European companies from complying with US sanctions outside US territory. European banks would have to continue providing services to the court. So would telecom, internet and other European companies.
The EU has already invoked the blocking statute in two prior circumstances – to limit US sanctions against Cuba and Iran. Trump’s threat to destroy one of the world’s foremost institutions of justice is a very appropriate third case.
Why hasn’t the EU already done so? One significant obstacle seems to be Dutch banks. The ICC is located in The Hague. If Dutch banks were ordered under the blocking statute to ignore Trump’s sanctions, they might face retaliation.
But Europe has tools to fight back. When Trump rattled on about seizing Greenland, European leaders responded by threatening to deploy their economic “bazooka” – officially known as the Anti-Coercion Instrument – which would restrict designated American companies from operating in Europe. Trump backed down.
The ICC also has an important tool in its arsenal. Article 70 of its founding Rome Statute makes it a crime (with a potential prison sentence of up to five years) to obstruct justice by intimidating or retaliating against court personnel for their official duties.
That’s what Trump’s and Rubio’s sanctions do. The ICC president, Judge Tomoko Akane of Japan, said as much in responding to them.
They were imposed because court personnel charged the Israeli prime minister, Benjamin Netanyahu, and the former Israeli defense minister Yoav Gallant for war crimes in Gaza and opened an investigation that might have included torture by US personnel under the George W Bush administration.
The court had jurisdiction even though neither the United States nor Israel has joined the court because these alleged crimes took place on the territory of the member states Palestine and Afghanistan.
Trump and Rubio might try to laugh off being charged by the ICC, but their world would become much smaller. They would suddenly risk arrest if they traveled to any ICC member state. They should ask the Russian president, Vladimir Putin, facing his own ICC arrest warrant, how he felt being unable to travel to the Brics summits in South Africa and Brazil. Trump’s pardon power does not extend to the ICC.
Charging a US president or secretary of state would obviously be a big deal. It would take a courageous chief prosecutor to take the step. Unfortunately, the ICC currently has no chief prosecutor since Karim Khan was ousted for sexual misconduct.
Two deputies, Nazhat Shameem Khan and Mame Mandiaye Niang, are serving as interim leaders. While the ICC is under attack, its member states are inexplicably dawdling in naming a successor. Urgent action is required.
Meanwhile, all of us should make clear what Trump’s sanctions are really about. The ICC is far from perfect, but it has done important work on behalf of the victims of mass atrocities in Ukraine, Sudan, the Democratic Republic of Congo, Myanmar, Afghanistan, the Philippines and elsewhere.
Trump would sacrifice all of that for his lawless views on American and Israeli crimes. Supporters of selective justice might endorse his quest for impunity. No one else should.
