There are two major international courts in The Hague which are often confused. One is the United Nations’ International Court of Justice (ICJ), housed in the historic Peace Palace, which adjudicates disputes between states. The second is the International Criminal Court (ICC), which was established in 2002 to prosecute individuals for war crimes, crimes against humanity and genocide. Housed in a modern glass and concrete building, the ICC has 125 member states – not all 193 members of the United Nations. The US, Russia and China are among the countries that have not joined, along with several states in Asia and North Africa.
When US Secretary of State Marco Rubio recently threatened to dismantle the court “brick by brick”, it was clear he was referring to the ICC. In a statement, the State Department outlined several measures Washington is considering as part of its campaign against the court. These include visa restrictions on ICC staff and stringent sanctions targeting the court and affiliated organizations. It also suggests increasing scrutiny of countries that “refuse to reject the ICC’s illegitimate authority” while continuing to receive US aid.
America has clashed with ICC before also. But legal experts around the world say Washington’s latest increase marks a significant change.
How Washington is putting pressure on Hague
“Now the US and Marco Rubio have essentially made public something that has been going on for over a year. The US is using various forms of diplomatic pressure against other countries in an effort to change their stance towards the ICC and in some cases their voting behaviour,” says Andreas Schuler, co-director of the Transnational Crime and Legal Accountability Program at the European Center for Constitutional and Human Rights (ECCHR) in Berlin.
“The fact that it is now being declared a campaign shows that it is being pursued strategically, that it is broad in scope, and that other countries – including those that are not ICC members – are being brought on board to help apply pressure,” Schuler told DW.
A court to ensure that no criminal escapes justice
The US is not a member of the International Criminal Court, meaning crimes committed on US soil do not fall under its jurisdiction. But the ICC can prosecute alleged atrocities committed in member states – a principle that could, for example, lead to arrest warrants being issued for Russian President Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu.
The ICC has its roots in the lessons of history. The Nuremberg trials following World War II, in which prominent Nazi figures were prosecuted, marked the birth of modern international criminal law. Following the establishment of war crimes tribunals in the 1990s following the conflict in the former Yugoslavia and the genocide in Rwanda, the demand for a permanent court gained momentum.
For Kai Ambos, an international law expert at the University of Göttingen, the issue comes down to a “fundamental question of accountability” – whether in Ukraine, Iran or Gaza. “It cannot be that such serious crimes are committed, regardless of the conflict, and that those primarily responsible – above all government leaders and others in power – go unpunished. Nothing happens. This is unacceptable for the victims, but ultimately for all of us,” Ambos told DW.
Should American citizens be in the dock?
In a brief video address, Marco Rubio said the court posed a threat to the entire American legal system. The US Secretary of State said, “Border Patrol agents are removing violent criminals from our country. American Marines are risking their lives to protect our country. (…) If we do nothing, they will all be left at the mercy of foreign judges thousands of miles away.”
There are no cases against US citizens currently pending before the ICC. The actions of US Immigration and Customs Enforcement (ICE) officers largely take place within US territory, where the court has no jurisdiction. The situation is different when it comes to targeted killings of alleged drug traffickers in the Caribbean: former ICC prosecutor Luis Moreno Ocampo described them in November as potential crimes against humanity..
How will the court bear the pressure?
Kai Ambos fears that the so-called “chilling effect” could intensify – for example, ICC prosecutors could become more cautious when dealing with US suspects. “And then there is the problem of over-compliance with sanctions – which means that companies outside the US can also say: We will no longer work with the entity because it could jeopardize our business in the US.”
Last year, the US State Department had already imposed several sanctions on the ICC and individual judges. The court responded by reducing its dependence on the US, for example, by replacing Microsoft Office software with German open-source alternatives.
ECCHR expert Schuler sees several small ways for member states to support the court. “If medium-sized powers and small states unite against the US and come together as a pillar of support for international institutions while pushing back against this pressure, that is the most important thing.”
The EU backed the ICC immediately after Rubio’s threat. Germany’s Foreign Minister Johann Waddefull also defended the court, saying it makes the world “safer and more just”.
Ironically, the US Senate had taken a similar view in the wake of Russia’s full-scale invasion of Ukraine in 2022. In a resolution, it described the ICC as “an international tribunal that strives to uphold the rule of law” and welcomed its investigation into Russia. One of the co-sponsors of the resolution introduced by the late Republican Senator Lindsey Graham was none other than current US Secretary of State Marco Rubio.
This article was originally published in German.