Two Months Since the US Sanctions Against the ICC: The Court Remains Insufficiently Protected

Two months have passed since Trump’s executive order imposing sanctions against the International Criminal Court (ICC). During these 60 days, the Secretary of State and the Secretary of the Treasury were to submit a report identifying additional individuals to be added to the list. However, so far only the ICC Prosecutor Karim Khan has been sanctioned.

Even without the extension of sanctions, this decision is already devastating enough. The President of the ICC, Judge Akane, has emphasised this in her addresses to EU representatives. She noted that this has already affected the ability to conduct operations and work with various contractors.

One of the reasons for this is over-compliance – the phenomenon where companies, to avoid potential risks, cease providing services even when there is no direct legal basis to do so. In other words, even though the sanctions only directly target the ICC Prosecutor, other Court staff or the ICC as a whole may face difficulties, which could impact its work in various situations – including investigations related to Ukraine.

We say “could” because there is no public confirmation of this (nor should we realistically expect it), but the concern is well-founded and shared, including by representatives of the European Commission.

Moreover, the sanctions could still be expanded – either within the framework of the executive order or through separate legislation. The idea of passing such a law may still return to the agenda. Some restrictions (e.g. a US entry ban) could apply not only to individuals directly under sanctions but also to other ICC staff or “agents” of the Court if designated as such by the Secretary of State. Depending on the scope of the sanctions and the interpretation of the executive order, interactions by civil society organisations with “sanctioned” Court representatives in other contexts may also fall under the category of “prohibited.” Given the political context of this decision, it’s difficult to predict how freely the conditions of the sanctions will be interpreted.

The sanctions also undermine the legitimacy of the ICC and thus weaken the authority of arrest warrants already issued in relation to Ukraine, as well as the Court’s broader role in delivering justice in the context of potential peace negotiations.

• This decision is a direct affront to the authority of the Court, which is grounded in international law. It further fuels scepticism among other states and reinforces the perception that ICC decisions and rulings are not binding.
• Unfortunately, the justification for the sanctions resembles that used by Russia: both the US and Israel do not recognise the ICC’s jurisdiction and oppose investigations into their nationals.
• This also means that Trump may be more likely to use the ICC’s investigations as a bargaining chip in potential peace negotiations between Ukraine and Russia.

While this situation stems primarily from actions taken by US authorities, the key role in responding to it currently lies with the European Union. It is crucial to strengthen calls on the EU and its member states to protect the Court. Despite a number of statements supporting the ICC, concrete measures from the EU are still lacking. Chief among the necessary steps is the adoption of a Blocking Statute, which would protect European service providers from US sanctions. It is also important to consider other forms of support and protection for the ICC, as the Court continues to face various challenges beyond sanctions, including cyberattacks, chronic underfunding, and threats of prosecution against its officials by other states, such as Russia.

An additional concern is the failure of some Rome Statute States Parties to fulfil their cooperation obligations with the ICC. Examples include Hungary’s decision to receive Israeli Prime Minister Netanyahu and recent statements by Belgium. The EU must respond decisively to such actions, which are becoming increasingly frequent.

Although sanctions are not currently a central issue on the US agenda, they could return to prominence, making it essential to continue efforts to reduce the risk of expanding the measures already in place. These sanctions are already harming international justice – including in relation to Russia’s war against Ukraine. We must keep this in mind and use all available tools to protect the International Criminal Court.кодять міжнародному правосуддю, зокрема й щодо війни РФ проти України. Маємо пам’ятати про це і доступними інструментами захищати Міжнародний кримінальний суд.