Unpacking Trump’s sanctions on the ICC

Former US President Donald Trump signed an executive order on Thursday imposing sanctions on the International Criminal Court (ICC) over its investigation into senior Israeli officials. This move came after Israeli Prime Minister Benjamin Netanyahu's visit to the White House, as Netanyahu is wanted by the ICC for alleged war crimes and crimes against humanity committed in Gaza since October 2023. The timing of the executive order suggests a potential alignment between the US and Israeli positions on the ICC's investigation.

Last November, Netanyahu and his then-Defense Minister Yoav Gallant were issued arrest warrants along with three Hamas leaders, who have since been killed by Israel. The executive order imposes financial and visa sanctions on unnamed individuals and their families who assist the ICC in investigating US citizens or allies. The warrants and subsequent sanctions highlight the complex legal and political landscape surrounding the Israeli-Palestinian conflict.

The president of the ICC has previously warned that these sanctions could pose an existential threat to the court. Experts have also cautioned that the impact of the sanctions will extend beyond the investigation into Israeli leaders, affecting the court's overall work. "I worry that the reverberations will be felt for a long time," legal scholar and former US Ambassador-at-Large for Global Criminal Justice Todd F. Buchwald told Middle East Eye. The potential consequences of the sanctions raise concerns about the ICC's ability to effectively carry out its mandate.

An executive order is a legally binding directive issued by the US President. It is not legislation and does not require congressional approval, but it must be based on existing constitutional or statutory authority. Under the National Emergencies Act (NEA) of 1976, the president has the power to declare a national emergency, thereby activating specific powers granted by various federal laws, including the imposition of sanctions on foreign individuals or governments. The NEA provides a framework for the president to respond to perceived threats through executive action.

Although executive orders carry significant authority, they are subject to judicial review and can be challenged in court if deemed unconstitutional. Adam Keith, Accountability Counsel at Human Rights First, said that this is not common in cases involving sanctions. "US courts are very deferential to the executive branch, and sanctions actions are not often litigated," he said. Furthermore, Congress can overturn an executive order by passing new legislation, but this requires the president's signature or a majority vote sufficient to override a presidential veto. The checks and balances within the US government provide avenues for challenging or modifying executive orders.

Trump declared a national emergency in his February 6 executive order to address the alleged threat posed by the ICC's investigation of individuals deemed protected by the order. Trump said in his order that the ICC "has engaged in illegitimate and unfounded actions against the United States and its close ally Israel." Neither the US nor Israel is a party to the Rome Statute that established the ICC in The Hague in 2002. Both countries have opposed the court's investigation into the situation in Palestine, which was launched in 2021 by former ICC Prosecutor Fatou Bensouda. The US and Israel's non-participation in the Rome Statute underscores their reservations about the court's jurisdiction.

The court's jurisdiction is based on the State of Palestine's accession to the Rome Statute in 2015. Therefore, the court can investigate crimes committed by Israeli individuals in occupied Palestine, which includes the Gaza Strip, the West Bank, and East Jerusalem. But Israel and the US have challenged the court's jurisdiction, saying they do not recognize Palestine as a state and that Israel is best placed to investigate itself, in accordance with the principle of complementarity under Article 17 of the Rome Statute. The dispute over jurisdiction highlights the complexities of applying international law in politically sensitive contexts.

Trump's order reiterated this view and described the arrest warrants as an abuse of power. The order added that the ICC's investigation risked exposing US personnel and members of the armed forces to "harassment, abuse, and possible arrest." It said that this, in turn, could threaten the sovereignty and national security of the US and Israel. The order referred to the American Servicemembers' Protection Act (ASPA), passed in 2002 under US President George W. Bush's administration, which restricts US cooperation with the ICC and even authorizes the use of force to liberate detained US personnel, earning it the nickname "The Hague Invasion Act." The invocation of ASPA demonstrates the US's historical reluctance to subject its citizens to the ICC's jurisdiction.

Unlike the 2020 order that named the ICC's former prosecutor and her deputy, Thursday's executive order did not name the individuals being sanctioned. But it said it would sanction those responsible for the ICC's actions against the US and Israel. The order freezes all US property and assets of sanctioned individuals, which includes persons listed in an annex to the order (which has not been made public), as well as foreign nationals directly involved in the ICC's investigation or prosecution of protected persons. The lack of specific names in the order adds an element of uncertainty and potential overreach to the sanctions regime.

Protected persons include nationals of the US or its allies, including current and former government officials and members of the armed forces. Sanctioned individuals and their immediate family members will also be barred from entering the US. ICC Chief Prosecutor Karim Khan, a British lawyer, is widely believed to be among those targeted, but without knowing who is targeted, it is difficult to gauge the impact of the sanctions. "The executive order seems to refer to 'persons [plural] listed in the Annex to this order,' but the order as posted on the White House website has no annex," Buchwald noted. "I don't know how people, including US companies, are supposed to comply with the executive order without the annex being published," he told Middle East Eye. The ambiguity surrounding the targeted individuals raises concerns about due process and the ability to comply with the sanctions regime.

Human Rights Watch said that US sanctions have a "chilling effect" on banks and companies outside the US, who could be cut off from the US banking system if they do not support the sanctions. In addition, Americans could face fines and imprisonment for failing to comply with the sanctions. "The order appears designed not only to intimidate court officials and staff involved in key investigations of the court, but also to undermine broader cooperation with the ICC, thereby impacting the rights of victims globally," the US rights group said. The impact on the court's work will depend largely on who is sanctioned and how many officials are sanctioned, Keith said. The potential for broad and indiscriminate application of the sanctions raises concerns about their impact on the ICC's ability to function effectively.

The EU warned on Friday that Trump's order has the potential to seriously affect the court's work in all investigations, not just the one on Palestine. The court is currently investigating alleged crimes in 16 situations, including Darfur, Ukraine, Venezuela, Afghanistan, and Myanmar. "The executive order may pose serious challenges to the work of the ICC and risks affecting ongoing investigations and proceedings, including on Ukraine, thus impacting efforts to ensure accountability for atrocity crimes at the global level over many years," an EU spokesperson told Middle East Eye. The EU's concerns highlight the potential for the sanctions to undermine international efforts to hold perpetrators of atrocity crimes accountable.

The president of the court, Tomoko Akane, warned in December that possible sanctions represented an existential threat to the first permanent international criminal justice institution. "These measures would rapidly undermine the court's operations in all situations and cases and would jeopardize its very existence," she said. There are steps that ICC member states can take to counter the impact of the sanctions. For example, the EU's Blocking Statute could be used to protect the court within Europe. The regulation is designed to protect EU companies and individuals from the effects of extraterritorial sanctions imposed by third countries. It focuses primarily on protecting EU operators from certain US sanctions that are deemed to have extraterritorial reach, such as those targeting Cuba and Iran. The potential use of the EU Blocking Statute demonstrates the international community's efforts to mitigate the impact of the US sanctions on the ICC.

Liz Evenson, international justice director at Human Rights Watch, explained that the EU Blocking Statute would provide assurances to service providers based in the EU that their dealings with the ICC are protected. Meanwhile, US lawyer Kenneth Roth, former executive director of Human Rights Watch, noted that the EU should establish a financial system that would enable court staff to operate, unimpeded by Trump's sanctions. "Trump's sanctions are mainly focused on the US dollar system, and many international transactions go through the dollar," he said. "What Europe really needs to do is create a counter-sanctions mechanism that provides financial liquidity to any court staff who are hit by Trump's sanctions." The creation of alternative financial mechanisms could help to circumvent the impact of the US sanctions on the ICC's operations.

On the other hand, the ICC has the power to indict Trump and other US officials for obstruction of justice under Article 70 of the Rome Statute. Roth said the threat is not arrest, but that Trump will be unable to travel to most European countries. All 125 member states of the ICC, including all EU countries, are obligated to cooperate with the court if it indicts an official. "Trump's world will become a lot smaller," Roth said, pointing to the example of Russian President Vladimir Putin, who has restricted his travel, including to the BRICS summit in South Africa, after the ICC issued an arrest warrant for him in 2022. The potential for reciprocal action by the ICC underscores the potential consequences of the US sanctions for US officials.