The Trump administration has taken another step in its crusade against the international criminal court by imposing sanctions on two more senior ICC officials. The growing number of sanctioned jurists – now 13 – does not change the lawless nature of this quest.
Donald Trump and his henchman, Marco Rubio, want to make the world safe for US and Israeli war criminals. No one should let them.
The latest victims of Trump’s vendetta are the ICC president – its chief judge, Tomoko Akane of Japan – and Abdoulaye Seye of Senegal, a senior ICC trial lawyer, evidently for his role advancing the prosecution of Israeli officials. Yet the real victims are not these particular individuals, but people worldwide who look to the court as one of the few avenues of recourse against unscrupulous leaders who commit mass atrocities such as fighting wars by targeting civilians.
We should never let Trump normalize these sanctions. Their main effect is to deprive the target of the ability to use the international financial system – no credit cards, no access to banks, extreme difficulty navigating a modern economy. That is a tool once reserved for corrupt or violent officials who were otherwise beyond the law. Trump is using them to attack the public officials who would bring such heinous individuals to justice.
Rubio, the secretary of state, dressed up the sanctions with high-sounding rhetoric about the ICC threatening “America sovereignty”. That is true only if Americans (and Israelis) have a sovereign right to commit war crimes wherever they want. Even Rubio cannot get himself to spell out what King Trump’s campaign is really about.
Rubio’s main articulated complaint is that the ICC can “investigate, arrest, detain, or prosecute officials whose government has not consented to ICC jurisdiction”. That is true, but it is wrong only if one adopts a conveniently (for Washington and the Israeli government) narrow sense of how the court should obtain jurisdiction for a crime.
On the one hand, when a country joins the ICC, it accepts the court’s jurisdiction over its citizens. That might be called jurisdiction by virtue of nationality. The US government accepts that route to jurisdiction because it never joined the court.
But when a country becomes a court member, it also confers jurisdiction over crimes on its territory, even when committed by a foreigner. That is hardly controversial. A hallmark of sovereignty is the ability to enforce the law on a country’s own territory. Even the Trump administration would not dare object to, say, the British government prosecuting an American for a crime committed in London.
But the administration claims it is somehow an outrage if a country confers that same territorial jurisdiction on the ICC for war crimes and similar atrocities committed by foreigners on its territory – a major purpose of the court. The US government objected to such territorial jurisdiction when the court’s treaty was adopted at a major diplomatic conference in Rome in 1998 – and lost overwhelmingly, by a vote of 120 to seven.
Since then, even the US government has accepted territorial jurisdiction when convenient. After the ICC used it to prosecute Vladimir Putin (Russia never joined the court) for the kidnapping of children from Ukraine (a member), Joe Biden called the prosecution “justified”. The late senator Lindsey Graham, a Republican leader on foreign policy, orchestrated a unanimous Senate resolution in support.
double quotation markDonald Trump and his henchman, Marco Rubio, want to make the world safe for US and Israeli war criminals. No one should let them
But for Trump, territorial jurisdiction suddenly became toxic again when it was used to charge Benjamin Netanyahu and the former Israeli defense minister Yoav Gallant with deliberately starving and depriving Palestinian civilians in Gaza. Israel is not a member of the ICC, but Palestine, where the alleged crimes took place, is.
Territorial jurisdiction can also be used to charge foreigners from non-member states with aiding and abetting crimes in a state where the ICC has jurisdiction. For example, the court might charge United Arab Emirates officials with aiding and abetting genocide in the Darfur region of Sudan by sending arms and mercenaries to the paramilitary Rapid Support Forces, Rwandan officials with aiding and abetting war crimes in eastern Democratic Republic of Congo by arming and supporting the M23 rebel group, or US officials (Trump’s real concern) with aiding and abetting Israel’s genocide in Gaza by supplying arms and military aid.
Indeed, territorial jurisdiction means that the sanctions themselves could lead to prosecution of Trump and Rubio. Article 70 of the Rome Statute, the ICC’s founding treaty, codifies the crime of obstructing justice when someone retaliates “against an official of the Court on account of duties performed”. That’s exactly what the Trump-Rubio sanctions do. The court would have jurisdiction because the sanctions relate to the prosecution of Israeli officials for crimes committed on Palestinian territory.
Rubio has vowed to dismantle the ICC “brick by brick, if necessary”, announcing: “We expect more countries to join our campaign by ending their funding and participation in this politicized and unaccountable court.” Yet that bombast so far has produced few results among the court’s 125 members.
Venezuela, which has become a US vassal state since Trump’s seizure of Nicolás Maduro, has announced its withdrawal. So has Chad, which announced its departure after a call from a state department official. But Chadian officials have their own reasons to worry about the court because they allowed their territory to be used by the UAE to arm the RSF in Sudan.
(Separately from Trump’s campaign, three military juntas in the Sahel have also announced their exit from the ICC: Niger, Mali and Burkina Faso.)
Yet if the response to the Trump administration’s call to leave the court so far has been tepid, the defense of the court by its supposed closest defenders has not exactly been vigorous. The European Union has what is known as a “blocking statute”, legislation designed to negate the application of US sanctions in Europe by prohibiting European banks from complying. But while the EU says it “deeply regrets” these new sanctions on the ICC, it has not invoked the blocking statute to protect court personnel.
One reason appears to be fear among banks, particularly in the Netherlands, of retaliation from Trump. The ICC is located in the Hague, also the Dutch seat of government.
In other words, as European officials see it, fighting genocide, war crimes and crimes against humanity is important. Trump’s efforts to allow Americans and Israelis to commit these crimes with impunity is disgraceful. But if defending the rule of law might put Dutch banks in Trump’s crosshairs, justice can wait.
The EU can do better than that.
