Newsletter: Who will defend the International Criminal Court?

Last week the International Criminal Court won the prestigious Sakharov prize. Awarded by the European Parliament, the prize is the highest honour the European Union can award for human rights work.

The move is being seen not just as recognition for the court’s work prosecuting those who have committed atrocity crimes, but also as a rebuke to the United States, which earlier this month imposed blanket sanctions on the court.

When the news of the Sakharov prize emerged, we were hard at work producing the latest episode of Inside Geneva, all about the ICC and the US strategy towards it, which Secretary of State Marco Rubio has described as a process “to dismantle the court.”

Why would the US want to do this? The ICC is, for many, the logical next step from the Nuremberg Trials, and the international tribunals for Rwanda and former Yugoslavia, all of which the US supported. The ICC is a court of “last resort” Human Rights Watch Executive Director Philippe Bolopion tells Inside Geneva, for those who have suffered “some of the worst crimes known to humanity.”

Please listen to this week’s episode

US unease

125 states have ratified the ICC, but the US (along with, among others, Russia, Israel and China) have not. We know that successive US administrations, both Republican and Democrat, have voiced unease that the ICC might be able to prosecute US soldiers – and in fact there was one case some years ago citing US actions in Afghanistan. But that case has long since been shelved, and there are no cases pending against the US.

That does not reassure our second guest on Inside Geneva, Richard Goldberg of the US-based Foundation for the Defence of Democracies. FDD supports the US strategy, and Goldberg argues the ICC should have no right “to come after those that have functioning rules of law, that have functioning court systems, that have strict uniform codes of military justice, and hold themselves to high account as democracies and free nations that abide by the laws of war.”

The ICC, Goldberg argues, should confine itself to “third world countries”, where there is no rule of law (he defines them as “mostly in Africa”), and certainly not address cases involving the citizens of countries who have not even ratified the ICC.

These views are not shared by Philippe Bolopion, and James Goldston of the US-based foundation, Open Society Justice Initiative, who also joins us on Inside Geneva. Both have heard the argument about the ICC encroaching on the sovereignty of democratic states many times, both wearily point out that the ICC is a court of last resort. Only when a state is unable or unwilling to investigate alleged atrocities committed by its citizens, will the ICC step in.

Washington’s insistence that the ICC should never take cases involving countries which have not ratified the court is inconsistent, Goldston tells Inside Geneva, since “the United States Congress almost unanimously recently endorsed the ICC’s actions against Vladimir Putin.” The Russian leader was indicted for war crimes by the ICC in March 2023, in relation to the illegal deportation of children from Ukraine to Russia.

Another government leader has also recently been indicted; Benjamin Netanyahu of Israel, on charges of war crimes and crimes against humanity in Gaza. Washington has made no secret of the fact that this particular case against its longtime ally was a key reason for the latest punitive sanctions.

Goldberg has no faith that Israel would get a fair hearing in the Hague. You’ll have to listen to Inside Geneva to hear his views in full, but he seems persuaded not only that the ICC is biased against Israel, but that the ICC’s wider home, Europe, is in the grip of some form of civilisational breakdown.

It’s a view we hear regularly from the MAGA aligned wing of the Republican party, but is not one fellow American Goldston shares. He is a passionate supporter of the ICC, describing it as: “The dream of the generation that gave us Nuremberg after the Second World War. It was seen as the last place that victims of the most serious crimes could go to secure some form of redress for the violence that they had suffered. It’s a precious public good.”

Sanctions – a form of bullying?

Both Goldston and Bolopion are dismayed by the latest US sanctions, fearing they really could succeed in the US stated aim of dismantling the court. Washington, under President Trump, had been sanctioning individual ICC judges and lawyers for some time, and human rights groups had been preparing for more. But this month Washington went further, sanctioning the entire court, and imposing financial blocks and threats of punishment on anyone who does business with it.

Goldston describes the effect as “like a financial death sentence…you lose access to virtually any kind of service that has a connection to the American financial system, whether that’s computers, banks, even health access.”

The sanctions have consequences for organisations like Human Rights Watch too. “It becomes impossible for me or my organization to collaborate with the court”, Bolopian explains. “In the past, we did that all the time. We are trying to support the work of the ICC. I met with Tomoko Akane (the ICC chief judge) a few months ago. Now she’s under sanction, I cannot meet with her anymore without taking huge risks. I could be liable for up to 20 years in jail in the US, and massive fines for violating these sanctions.”

Human Rights Watch and Open Society, together with other human rights groups, are now challenging Washington’s sanctions in a US court. They are hopeful, they say, of victory.

Change the rules

Goldberg has a different proposal. The only way to get the sanctions lifted, he says, is for the Rome Statute (the treaty establishing the ICC) to be renegotiated to exclude democracies “like the US and Israel”, from ever being investigated or prosecuted.

Such a provision, a form of eternal impunity, would never be agreed by human rights groups, nor the 125 countries who have ratified the court. They may never expect to find their own citizens in the dock at the ICC, but they still support an international court in which, as Goldston puts it “the principle of the rule of law is that no one stands above the law. It applies to all equally.”

So what happens now? Bolopion of HRW wants to see European countries stand up to defend the ICC. The Sakharov prize is an important first step, but he wants more. The EU could activate its blocking statute, designed to protect EU businesses and institutions from foreign sanctions. “If all of these countries come together and decide to protect the court and stand up for the idea of international justice, they’re very powerful”.

But if European countries make their support for the ICC explicit, including continuing to fund it, Goldberg warns more punishment can be expected. Long an advocate of blanket sanctions on the court rather than targeting individual judges, Goldberg now wants to go further. “The message to all the top funders of the ICC,” he says, “Japan, Britain, Canada and France… I am happy to make sure that any transaction that is attempted to go to the ICC for funding results in sanctions on the bank that attempted the transaction.”

Meanwhile Goldston of the Open Society Institute is still hoping his country may return to the principles it upheld so powerfully 80 years ago at the Nuremberg trials. When he practiced law himself, he remembers: “I was proud to stand up in court and say that I represent the United States of America. I don’t want to give up on that kind of pride. I want to believe that my government recognises the value of the rule of law and courts that defend it. So I’m hopeful that over time, with enough support from around the world, the United States will change its view and will ultimately join this historic effort in support of international justice.”

Listen to the full – lively – debate on Inside Geneva!

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