The International Criminal Court facing potential paralysis

The ICC has attracted global attention with its spectacular arrest warrants against Putin and Netanyahu. However, the return of the Republicans in the United States might seal the ICC’s future inability to act, through a law that will sanction anyone collaborating with it.

Tuesday, November 19 marked the 1000th day of Russia’s large-scale invasion of Ukraine which began on February 24, 2022. Recently, a court in Rostov-on-Don sentenced two Russian soldiers to life imprisonment for murdering a family of nine in the occupied territories of Donetsk. These convictions, although rare, come amidst allegations of widespread and systematic international crimes committed by Russian forces in Ukraine.

In Israel, the IDF claimed to be investigating 300 possible violations of its code of conduct during the Gaza war, according to a document submitted to the International Criminal Court. However, an article published last week by the Israeli newspaper Haaretz noted that investigations conducted by the military leadership responsible for evaluating these acts often take years and almost invariably end without any criminal inquiries being opened against the individuals involved.

In Gaza, a religious figure, Professor Dr. Salman al-Dayah, Dean of the Faculty of Law and Sharia at the University of Gaza (affiliated with Hamas), published in November a fatwa, a non-binding legal decision by a respected religious authority, generally based on the Quran. This document condemns the October 7, 2023, attack on Israeli civilians and criticizes Hamas for not respecting all Islamic principles governing jihad.

The ICC faces more backlash from the United States

The International Criminal Court (ICC), based in The Hague, has been at the forefront of these two conflicts for nearly two years. With the arrest warrant against Vladimir Putin issued in 2023 and warrants issued last week against Prime Minister Benjamin Netanyahu, former Minister Yoav Gallant, and Hamas leader Mohammed Deif, it has become a key and unavoidable actor in international justice.

However, the results of recent U.S. elections risk changing the situation in the coming months and four years. In June this year, the lower house of the U.S. Congress passed a law threatening extensive sanctions and restrictions on ICC members, including their families, if they target U.S. citizens or their allies, primarily Israeli political leaders. With Donald Trump’s election and a Republican majority in the Senate starting January 2025, it is highly likely that this text will be definitively adopted, as future Senate Majority Leader John Thune has publicly supported it.

Expansive U.S. sanctions to discourage collaboration

The scope of this law is extraordinarily broad, and includes any foreign person — as well as spouses, children, parents, siblings — who provides material, financial, or technological support to the ICC in its efforts to investigate, arrest, detain, or prosecute anyone designated as “protected.”

The definition of a “protected person” is also very broad. It includes U.S. or Israeli citizens but also any individual — military personnel, government employees, or those holding official mandates — who is a citizen or resident of a U.S. allied country that has not consented to ICC jurisdiction or is no longer a member. For example, this law could protect anyone working for the government, administration, or military of Bahrain, Egypt, Kuwait, Morocco, Pakistan, Thailand, Turkey, or the Philippines.

The consequences of such legislation with such a broad scope could be countless, sometimes bordering on the absurd. This law could have thus interfered with actions of the ICC against Hamas leader Ismail Haniyeh, residing in Qatar, if he had not been killed in a strike in Iran at the end of July. It could also have been used to directly impact the Court’s investigations into Libya, as the strongman of eastern Libya, Marshal Khalifa Haftar, is a U.S. citizen.

Victims, banks, allies: all potentially targeted by sanctions

This does not even include the risks for victims themselves who have provided testimonies, NGOs that collaborate with or interact with the ICC and could, in turn, face sanctions, as well as experts consulted by the prosecutor, such as Anglo-Lebanese lawyer Amal Clooney.

One could also imagine that executives of Dutch banks in The Hague or English banks in London whose accounts are used by ICC members could be sanctioned. The same applies to members of the Belgian government, as Belgium has made a contribution of 5 million euros to the ICC, initially intended for investigations in Palestine.

For a court that has over 900 employees and field offices in seven different countries, nothing could obviously function if those providing it logistical and financial services are prevented from doing so due to American sanctions. The risk of the ICC’s operations grinding to a halt is therefore very real.

The drafters of the ICC Statute envisioned in Rome in 1998 that this court would only be a last resort, with the obligation to investigate and prosecute international crimes resting primarily with the states. In an ideal world where states would prosecute all crimes committed, the ICC would no longer be necessary.

Twenty-five years later, there looms a concrete possibility that the ICC will barely function anymore. What the drafters likely did not foresee, is that this situation would not result from the best-case scenario of a world where states prosecute all international crimes domestically.

On the contrary, it would stem from the worst-case scenario, a material paralysis of all ICC operations caused by the new administration of the world’s leading power, opposing international justice when it applies to itself or its allies.

An ICC operating in a volatile context

It is therefore in a volatile context that the ICC announced last Thursday the decision of its three judges to follow up on the prosecutor’s request to issue arrest warrants, including against Benjamin Netanyahu. Such a decision will certainly not calm the Republicans’ hostility towards the ICC in the United States.

On the contrary, as illustrated by Senator Tom Cotton’s reaction, calling the ICC prosecutor a “deranged fanatic” and recalling that the current American law on the ICC is nicknamed the “Hague Invasion Act,” providing for the military release of Americans or citizens of allied countries detained by the ICC in The Hague.

Nonetheless, this decision, whatever its potentially heavy consequences for the ICC, challenges the idea that international justice is always only strong against the weak and weak against the strong.

The article first appeared in French on Le Temps on the 25th of November 2024