Can the International Criminal Court survive the next four years? | ICC

The world’s only permanent international tribunal with jurisdiction over war crimes, crimes against humanity and genocide is facing its biggest challenge to date. With the incoming Trump administration and looming sanctions against the court and its staff, a simple question arises: Can the International Criminal Court (ICC) survive the next four years?

I ask this question after attending the Assembly of States Parties to the BCC, the annual diplomatic conference of the Court’s member states. The meeting came at a time when dark clouds were gathering, both figuratively and literally, over The Hague, where the BCC is headquartered. Sanctions are coming, and maybe not too late.

It turns out that the United States may not wait for the inauguration of Donald Trump before imposing sanctions. Instead, Republicans could add sanctions to the National Defense Authorization Act, the bill that outlines Washington’s annual defense budget and spending.

The hope among the court’s supporters is that the sanctions will target senior officials at the court rather than the court itself. The ICC may face sanctions against several of its employees. But if sanctions are imposed on this institution, they could have bigger and worse effects. How could ICC investigators and officials travel? How will the court pay its employees if the banks and financial institutions it uses fear that it will not comply with the sanctions? Can judges use Microsoft Word to write their decisions?

This is not the first time the court has faced US sanctions. In the final months of the Trump administration, sanctions were imposed on several officials, including then Gambian Attorney General Fatou Bensouda. But now the court and its supporters are looking at Washington’s four years of coercive measures. Even if the sanctions target specific ICC staff, they will expose a familiar discriminatory and racist mindset within the Trump administration: ICC staff from Western allies are in a better position to persuade Trump to exempt their nationals from sanctions than those from the Global South.

The challenge facing the Court is acute. It must somehow avoid further tensions with the United States while maintaining its independence, and yet avoid normalizing or legitimizing Trump.

At this point, it is hard to imagine how this is possible. Consider the following trajectory: in the coming weeks, the Trump administration is imposing sanctions on high-ranking officials of the ICC. The court is doing its part and insists that it remains unstoppable. Member states rally behind the institution. The trial is ongoing and the prosecutor is seeking an arrest warrant for Israeli National Security Minister Itamar Ben-Gvir for war crimes and crimes against humanity committed in the West Bank. This step is seen by most of the world as the right and obvious thing to do for an independent judiciary. But a disgruntled White House is stepping up, imposing new sanctions on the ICC as an institution and going one step further by demanding that its allies also impose 30 percent tariffs on trade with them unless the court sanctions them.

The above scenario is completely plausible. US Senator Lindsey Graham has already claimed that countries like Canada, France and Germany should be sanctioned for supporting the ICC. Could the court withstand such pressure? Will there be member states?

The ICC has previously withstood Washington’s interference in its work, particularly in the early years when it faced the hostile administration of President George W. Bush. America has finally realized that the ICC poses little or no threat to its interests when it targets the likes of Joseph Kony, the leader of the Lord’s Resistance Army, or Omar al-Bashir, the former president of Sudan; rather, America’s interests were undermined by its relentless resistance to the prosecution of notorious atrocities. Former Secretary of State Condoleezza Rice even claimed that her administration’s approach to the ICC was akin to “shooting ourselves in the foot.”

But now the ICC is in direct conflict with US interests, especially with regard to the issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. These warrants do not go away. Neither is the American opposition.

How does the court tolerate this?

Its survival will ultimately depend on the states that created the ICC in the first place. First of all, they must perceive this moment as an existential threat to their institution. They must accept that the threats from Washington are real and will remain constant for the foreseeable future. They should do everything possible to insulate the ICC and its staff from sanctions.

States should also remind America that judicial sanctioning of the warrants against Netanyahu and Gallant would fundamentally undermine accountability efforts in situations where US interests align with the ICC: Ukraine, China-backed Myanmar, and Venezuela. Every time a new enforcement action is taken against the ICC, American policymakers should be forced to hear from Ukrainian, Rohingya, and Venezuelan victims and survivors of atrocities. They will also suffer from ICC sanctions.

As for the court, it should not endure a state trying to determine the institution’s viability and decision-making capacity for too long. But the ICC can remain unstoppable and counter American hostility in strategic ways. For example, investigators should investigate the opening of cases against Iranian leaders for aiding and abetting Hamas and its atrocities. That’s the right thing to do, but it also has the added benefit of making it harder for Trump, Graham and others to criticize the court as a whole.

The ICC will survive for the next four years. Whether it emerges as a mere shadow of its former self, or as a strategically competent and more effective international tribunal, depends on its leadership and the states that claim to support the court, but who now must do their best to prove it.

The views expressed in this article are those of the author and do not reflect the editorial position of Al Jazeera.