The international community can protect the ICC from Trump's sanctions. Here's how

The International Criminal Court (ICC) is facing the risk of sanctions from the administration of US President Donald Trump, but experts say the international community and the court have the capacity to fight back. US Senate Democrats on Tuesday blocked a House bill that could have imposed broad sanctions on the ICC for issuing arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. However, Trump has the power to unilaterally impose sanctions without Senate approval.

On his first day back in office, Trump reversed his predecessor Joe Biden's decision to lift sanctions imposed on ICC officials in 2020, before the end of Trump's previous term. Adam Keith, senior accountability director at Human Rights First, said this does not mean sanctions will take effect immediately. Currently, Senate Republicans are lobbying Trump to issue a new executive order against the court, as Netanyahu is scheduled to visit the White House on Tuesday.

The United States is not a signatory to the Rome Statute, the treaty that established the ICC, and therefore has no legal obligation to arrest Netanyahu and extradite him to The Hague. The ICC, established in 2002, is the world's first permanent international criminal court with jurisdiction to prosecute individuals accused of genocide, war crimes, crimes against humanity, and aggression. Netanyahu is the first leader of a Western-backed nation to have an arrest warrant issued by the court, which has also recently sought warrants for Myanmar's President Min Aung Hlaing and Afghan Taliban leaders.

Keith said that depending on which officials and how many are targeted by sanctions, the sanctions have the potential to bring the court's operations to a halt. "Based on the experience in 2020, if it's just a few prosecutorial officials on the list, the court can sustain and continue operating," he told Middle East Eye. But he added that if the number is higher, the impact could be significant. In the 2020 order, Trump claimed the ICC's investigations against the US constituted a national emergency, thus necessitating sanctions. Keith said this time "he could do the exact same thing," having served as a civil servant at the US State Department for ten years between 2007 and 2017. "He could even copy and paste the exact same text of the executive order."

Kenneth Roth, a US lawyer who served as executive director of Human Rights Watch for three decades until 2022, believes Trump should be concerned about the consequences of his decision to impose sanctions on the ICC. "If Trump takes this step, he shouldn't think he will get the same passive response as with Fatou Bensouda," Roth told Middle East Eye, referring to the former ICC prosecutor Trump sanctioned. "Karim Khan may respond differently," he said, citing the ICC's power to bring charges of obstruction of justice against those who try to pressure its personnel. Roth explained: "Sanctions would fit squarely within what the crime of obstruction of justice prohibits." Article 70 of the Rome Statute prohibits offenses against the administration of justice, including: "impeding, intimidating or corruptly influencing an official of the Court for the purpose of compelling or persuading the official not to perform, or to perform improperly, his or her duties; and retaliating against an official of the Court on account of duties performed by that official or another official."

Roth said the threat is not being arrested, but that Trump will be unable to travel to most European countries. The ICC's 125 member states, which include all EU countries, are obligated to cooperate with the court if it prosecutes officials. "Trump's world is going to get a lot smaller," Roth said, citing the example of Russian President Vladimir Putin, who has had his travel restricted since the ICC issued an arrest warrant for him in 2022, including a trip to South Africa for a BRICS summit.

Elizabeth Evenson, director of international justice at Human Rights Watch, warned that sanctions against the ICC would have a direct impact on rights groups and NGOs working with the court. She said that once sanctions are imposed on ICC officials, US-based NGOs will have to comply with the sanctions or face penalties. "Sanctions could have a very broad chilling and intimidating effect on NGOs, making them afraid to carry out their work in support of victims seeking justice at the ICC," she told Middle East Eye. Meanwhile, Toby Cadman, a British international lawyer and co-head of Guernica 37 Chambers, said he was "very concerned" about possible sanctions, which could represent an "existential threat" to the court. Cadman's law firm was one of the groups that submitted amicus curiae briefs to the ICC Pre-Trial Chamber, arguing the court has jurisdiction over the situation in Palestine. Cadman said that if people who assist the court become targets of sanctions, then lawyers and organizations that submit amicus briefs, as well as expert panels that advise Khan, even before the Israel-Hamas warrants, could be at risk. He also added that the ICC is already facing funding shortfalls, understaffing, and an increasing caseload. "Some people are commenting that this would be the end of the ICC. I don't think that's unrealistic. I think it is an existential threat to the ICC."

Evenson and Keith said ICC states parties must publicly oppose the idea of sanctions, sending a signal to Washington that they will work together to protect the court. This is exactly what happened last Monday when ICC member states expressed support for the court at a UN Security Council meeting, when Khan briefed the council on the situation in Darfur. Then, if sanctions are imposed, ICC member states can take steps to counter their impact. For example, the Blocking Statute could be used in Europe to protect the court. The EU Blocking Statute is a regulation designed to protect EU companies and individuals from the effects of extraterritorial sanctions imposed by third countries, essentially preventing them from complying with foreign laws that could harm their business operations within the EU, even if those laws target activities outside EU jurisdiction. It primarily focuses on protecting EU operators from the effects of certain US sanctions that are considered to have extraterritorial effect, such as those targeting Cuba and Iran.

On January 22, the Dutch parliament passed a motion calling on the Netherlands, as the host state of the ICC, to take measures to protect the court at the national level and at the EU level, including by using the Blocking Statute to minimize the impact of sanctions. Evenson explained that the EU Blocking Statute would provide assurances to EU service providers that their transactions with the ICC are protected. "This gives them a strong sense of support that if they want to continue to work with the ICC, they will have the protection that the Blocking Statute offers," Evenson said. Meanwhile, Roth noted that the EU should establish a financial system that allows court staff to operate without being impacted by Trump's sanctions. "Trump's sanctions are primarily aimed at the dollar system, and many international transactions go through the dollar," he said. "What Europe really needs to do is establish a counter-sanctions mechanism to provide financial liquidity for any court staff who are targeted by Trump's sanctions," Roth added. In a statement to Middle East Eye, the EU expressed its support for the court and its opposition to possible sanctions. "We are closely following the US processes and are in contact with the ICC," an EU spokesperson said. "The EU and its member states are firmly committed to upholding international criminal justice and combating impunity. We support the ICC and the principles enshrined in the Rome Statute. The EU respects the independence and impartiality of the Court."