One of U.S. President Donald Trump’s high-profile decisions following his inauguration was to impose sanctions against the prosecutor of the...
One of U.S. President Donald Trump’s high-profile decisions following his inauguration was to impose sanctions against the prosecutor of the International Criminal Court (ICC), Karim Khan. The U.S. leader also signed an executive order instituting financial sanctions against the court itself, asserting that it “has engaged in illegitimate and baseless actions.”
What happened
According to Washington's official explanation, the ICC “without a legitimate basis, asserted jurisdiction over and opened preliminary investigations concerning personnel of the United States and certain of its allies, including Israel, and has further abused its power by issuing baseless arrest warrants targeting Israeli Prime Minister Benjamin Netanyahu and Former Minister of Defense Yoav Gallant.” It was also stated that the ICC has no jurisdiction over the United States or Israel, as these countries are not parties to the Rome Statute; “neither country has ever recognized the ICC's jurisdiction” and “both nations are thriving democracies with militaries that strictly adhere to the laws of war.”
This is what Donald Trump's decree articulates. In addition to imposing financial sanctions and visa restrictions on court officials and their families, the decree warns that the U.S. will continue to impose significant restrictive measures for violations by the ICC.
What are these violations? According to the decree, the ICC's actions “threaten to infringe upon the sovereignty of the United States and undermine the critical national security and foreign policy work of the United States government and our allies, including Israel.”
Trump’s arguments
It is noteworthy that Washington did not bother to recall the limits of the ICC's jurisdiction and the primacy of national sovereignty over the decisions of this body when the court (and Prosecutor Khan) were making decisions in favor of arresting the leaders of other countries, including Russia’s President Vladimir Putin, who was charged with the “war crime of unlawful deportation of population (children) from occupied areas of Ukraine to the Russian Federation.”
The explanation is simple: Trump imposed his sanctions on the court not because it had repeatedly pronounced biased, politicized, and legally void decisions, but solely because this time such a decision affected the United States and its ally, Israel. If this had not happened - if Prosecutor Khan had not overstepped his bounds - Washington would probably still view the ICC as a miraculous means of persecuting the undesirable, particularly those who are defiant. Russia first thing.
However, one cannot help but notice that by prioritizing national sovereignty over the decisions of an international body, Trump has objectively allied himself with Moscow, which condemned the ICC's decision as null and void, citing its refusal to ratify or recognize the court's jurisdiction, and even opened a criminal case against Khan.
The ICC has taken note of the message from the White House. In a conversation with the British daily The Guardian, an unnamed senior official of the ICC expressed concern that Trump's sanctions could negatively impact the court’s very existence.
The ICC itself, however, has long been viewed as questionable. The same applies to all formally international organizations that have, in fact, been tightly controlled by the collective West. Over the past thirty years, they have been perceived as biased, one-sided, unfair, and unjust.
Consider the tribunal for the former Yugoslavia, which convicted 60% of Serbs and only 18% of Croats tried for war crimes during the civil war. Its prosecutor, Carla del Ponte, admitted in an interview - without a hint of shame - that the prosecution of war criminals in the modern world was a purely political matter.
This confession pertained specifically to the Albanian leaders of Kosovo, who had just been recognized by the West. They participated in the torture of Serbs and the removal of organs from kidnapped individuals, knowledge that the prosecutor of the International Tribunal possessed but chose to ignore. As del Ponte herself admitted, “if the Albanians' crimes had come to light, Kosovo's independence would have been out of the question.”
Then there's the case of former Yugoslav President Slobodan Milosevic, who died while in the custody of this tribunal. The court was unable to prove his guilt regarding the charges against him after five years and 23 sessions, yet it continued to detain him without providing adequate medical care.
The International Criminal Court is following a similar path. The ordeal of Jean-Pierre Bemba, former Vice-President of the Democratic Republic of the Congo, serves as a pertinent example. He was sentenced to 18 years behind bars, but the ICC Appeals Chamber eventually overturned the verdict, dismissing all charges. However, before this “happy ending,” Bemba had spent ten years in a detention center in The Hague. Furthermore, the ICC refused to compensate this unfortunate, innocent politician for a clear and gross miscarriage of justice!
ICC’s leaking umbrella?
Incidentally, ICC prosecutor Karim Khan himself worked in the prosecutor's office of the International Criminal Tribunal for the former Yugoslavia. Since 1997, at the age of 27, he had already been part of Carla del Ponte's “team.” However, he is unlikely to emulate his predecessor's frankness regarding the organ traffickers in the Kosovo leadership
The reason is simple: this British citizen is said to have many skeletons in his closet, ranging from cases of sexual harassment - subject to internal investigations by the ICC - to questionable connections between decisions made and subsequent benefits for himself and his family. For instance, Khan's request for an arrest warrant for the Russian president was preceded by the early release from a British prison of his sibling, who had been convicted of molesting a 15-year-old male teenager and served only half of his term.
Khan is not the only one with a questionable past; other ICC officials have much to fear as well. U.S. sanctions may not only cut off the court's access to banking services and payment systems but could also block its operations entirely - after all, the ICC's IT system is managed and modified by Microsoft, a U.S. software giant. Ultimately, Trump's decision deprives the ICC of its main resource - the “political umbrella” of the United States.
From a purely professional standpoint, without such an “umbrella,” the ICC has long appeared to be an establishment with questionable legitimacy, dubious conclusions, and blatant inefficiency. The most authoritative countries in the world have either not ratified the so-called Rome Statute, which established the ICC, or have outright refused to be parties to the treaty, even after signing it. This includes three of the five permanent members of the UN Security Council: Russia, China, and the United States, as well as major Asian powers such as India, Turkey, Indonesia, Pakistan, and Malaysia, along with most states in the Arab East and Israel.
If an international court's jurisdiction is not recognized by a sovereign state, the powers of such a court cannot prevail over that state's will. No one can compel a sovereign country to fulfill obligations to which it has not consented. This is a fundamental principle of international law: any treaty is binding only on its signatories.
It should come as no surprise that in 25 years, ICC officials have closed trials against only 32 individuals. Half of them were acquitted. Perhaps justly so. These cases predominantly concerned countries in Africa and Asia - those unable to defend themselves with a harsh decree.
When a court takes on too much...
International law firmly establishes that high-ranking officials, such as heads of state, heads of government, and foreign ministers, enjoy immunity from the jurisdiction of courts in other states. However, when the Rome Statute of the ICC was drafted, it stated that “immunities ... which may attach to the official capacity of a person ... shall not bar the Court from exercising its jurisdiction over such a person.” In other words, the parties to the treaty themselves agreed that, for the sake of justice, immunities for the highest officials do not apply among them.
However, this consent obviously has no bearing on countries that did not sign or ratify the treaty or that have withdrawn from it. What does the ICC do then? It arrogantly circumvents these sovereign rights, thereby illegally placing international jurisdiction above national jurisdiction.
Naturally, this also plants the seeds of conflict between states, which, as parties to the Rome Statute, must either formally refuse to execute the ICC's verdict to detain the head of a third-party state or risk going to war with that state. The arrest of the head of another state is an unequivocal casus belli, leaving virtually no alternatives. Or, as is often the case, it may lead to the abandonment of mutual negotiations and, subsequently, contracts.
A natural question arises: if the International Criminal Court dares to flout the law so brazenly, trampling its own authority in the process, in whose interests does it do so?
Once again, the ICC’s own practices provide the answer.
Music box broken?
In one instance, the ICC’s previous prosecutor, Fatou Bensouda, attempted to launch a probe into alleged crimes by the U.S. military in Afghanistan. What happened? The same Donald Trump, during his prior term in office, imposed sanctions against her and officials in her office. Less than six months later, this independent lady judge was replaced by Karim Khan, who then resumed consideration of the Afghan case, refocusing it on investigating Taliban crimes!
Another example: the ICC completely ignored evidence exposing crimes by the Georgian military in South Ossetia from July to September 2008, but suddenly issued arrest warrants for three citizens of South Ossetia in 2022. Since 2009, the court procrastinated in considering the appeal of Palestine and other states regarding documented crimes committed by the Israeli military under the Rome Statute. It was only after 15 years - when the clear genocidal component of Israel's operations in the Gaza Strip became apparent to the entire world - that the ICC was compelled to open the case.
Even then, the court stubbornly tried to downplay the issue, allocating minimal funds - less than one million euros - for the investigation of the Palestinian case, in stark contrast to the 4.5 million euros granted for the Ukrainian dossier! Moreover, it was Khan who requested additional voluntary donations for this purpose from the parties to the Rome Statute.
Ultimately, the Israeli case could not be ignored: after an arrest warrant for the Russian president was issued on absurd charges, the Israeli prime minister, under whose orders the Gaza Strip was devastated, could not be overlooked. Now, it will be intriguing to observe the ICC's reaction - and Prosecutor Khan's personal response - to Trump's rebuke.
As has been rightly pointed out, Israel did not sign anything either; therefore, Netanyahu does not fall under the jurisdiction of the Rome Statute. However, revoking the arrest warrant against him without doing the same for Vladimir Putin would make the ICC appear ridiculous – like a clown with a broken music box to which it has been dancing all along.
A crossroads? It looks more like a dead end.
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