The ICC is Courting Payback

President Trump’s executive order placing sanctions on members of the International Criminal Court has met with strong opposition from European and other close allies who regard the ICC as legitimate. But Trump’s move illustrates the difference between claiming to have power and having it.

On Thursday, Trump signed an executive order imposing sanctions on the ICC for engaging in “illegitimate and baseless actions targeting America and our close ally Israel” when it “asserted jurisdiction over and opened preliminary investigations concerning personnel of the United States and certain of its allies.” The sanctions could include travel and financial restrictions on ICC officials and their families, or anyone materially supporting their efforts. The first person hit with sanctions was ICC Chief Prosecutor Karim Khan.

The United States is not a party to the 1998 Rome Statute that established the ICC; the Clinton administration signed on briefly in 2000, but by 2002 the U.S. was out. The reasons why are simple; the United States sees no interest in binding itself to an international body that could make decisions that are not in American interests and potentially be a direct assault on U.S. sovereignty. This is also why Russia, China, India, Saudia Arabia, Egypt and Israel, among others, are not signatories.

Yet the ICC reserves the right to make rulings concerning non-signatory states. We saw an example of this overreach last November when the ICC issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and others for alleged war crimes committed in prosecuting the Gaza war. The issue became acute in January when ICC signatory state Poland suggested it could arrest Netanyahu if he visited the country for International Holocaust Remembrance Day. Poland quickly walked this notion back, because in addition to the political crisis the arrest would generate, imagine the optics of Poland detaining the leader of the Jewish state while he was visiting Auschwitz.

Trump’s executive order is not solely a response to moves against Israel; recall that he issued a similar executive order imposing sanctions on ICC members in 2020 when they were investigating the conduct of American troops in Afghanistan. President Biden reversed that order, but now it is back and even stronger.

ICC oversight over American conduct is superfluous and unnecessary. The United States has clear laws, rules and procedures regarding conduct in war, and an independent justice system with means of investigation and enforcement should crimes be alleged.

More importantly, the United States cannot allow a foreign body of this type to create its own definitions of what constitutes criminal conduct and then impose their judgment unilaterally. This could affect not only US service members but also policymakers and elected officials. Suppose the ICC decided that President Trump's 2020 strike against Iranian general and terrorist facilitator Qasem Soleimani constituted a war crime and issued an arrest warrant. No American president, policymaker or national security decision-maker should ever have to wonder whether any given decision they make will bring them under the purview of a foreign judicial body governed by its own abstract notions of justice, not to mention its political biases.

But while the United States can safely ignore ICC claims of jurisdiction, the ICC could have a harder time escaping American influence. Sanctions can have wide-reaching consequences. Travel bans and financial restrictions on ICC executives and staff could cause financial institutions to go out of their way to comply with U.S. regulations and refuse to deal with transactions involving the ICC. Countries may reassess whether they want to continue to work with the institution or risk falling under the sanctions’ purview. Investigations may be impeded, NGOs and law firms may be affected, and other non-signatory countries may be emboldened to impose their own penalties. Those who argue this could fatally undermine the ICC are missing the point that this is exactly what the sanctions are intended to do.

Countries that have subjected themselves to ICC oversight may of course do as they please, accepting the jurisdiction, rulings and penalties associated with it and the diminution of sovereignty that it entails.  And whether the world’s largest financial institutions will cooperate in enforcing U.S. sanctions on ICC leaders remains to be seen. It may be that they will choose to ignore sanctions enforcement, in the same way Poland chose not to arrest Netanyahu for the ICC, or South Africa said they would not apprehend Vladimir Putin if he came to Johannesburg.

But whether the financial institutions cooperate, the United States is fully within its rights to counter the moves of this hostile, illegitimate foreign entity by using legal sanctions and other methods available to the president.

If the ICC objects, they can write an angry letter.

James S. Robbins is Dean of Academics at the Institute of World Politics Graduate School.