Trumping the ICC: President Trump’s Executive Action Sanctioning the International Criminal Court and its Consequences

In November 2024, the International Criminal Court issued warrants of arrest against two of the world’s most powerful men – Israel’s Prime Minister Benjamin Netanyahu and former defense minister of Israel Yoav Gallant. In parallell an arrest warrant was also issued against Hamas Military commander Mohammed Deif – wherein these three individuals were accused of committing ‘war-crimes’ and ‘crimes against humanity’ in the Gaza conflict. Mohammed Dief was killed by Israel last year, but his death was only confirmed by Hamas recently.

This proceeding of the International Court was then termed ‘outrageous’ by President Biden and he unequivocally mentioned that there is “no ‘equivalence’ – none – between Israel and Hamas.” In keeping with his predecessor, President Trump has sanctioned the International Criminal Court itself. But this isn’t the first time that  Trump has taken such a stance. During his previous term (2016-2020), sanctions and a visa ban were placed upon ICC’s then prosecutor, and the court was labeled ‘kangaroo;’ this being after ICC investigating allegations of crimes allegedly committed by United States forces in Afghanistan. Later, after assuming office, President Biden dropped sanctions and subsequently the ICC prosecutor ‘changed course’ on the Afghan investigation.

This time though, the loudness and extent of actions by the Trump Administration is extraordinary; an executive order was signed by the President declaring the International Criminal Court  “illegitimate,” and placing “financial and visa restrictions on ICC staff and anyone assisting ICC investigations against the United States and its allies.” The basis of these sanctions can be found in the very words of the order, wherein the ICC has been accused of “threatening to violate American sovereignty,” and “undermine national security and foreign policy.” 

It is important to note that the International Criminal Court is independent of the United Nations, established by the Rome Statue and coming into force in 2002. Having jurisdiction primarily over war crimes and crimes against humanity, the court is empowered to prosecute individuals and not states. Whilst the US and Israel are themselves not members or parties to the statute, members of the ICC (which include most state that are members of the UN) such as the United Kingdom, France, and Germany have affirmed their stance by condemning Trump’s executive order. The ICC has also called on its member states amongst others to “stand united for justice and fundamental human rights.” 

These sanctions by the American Government typically suggest ‘Trump’s foreign policy, depicting his functioning and style. Early in his second term, President Trump displays his familiar iron-fist approach, where ‘Trumpian’ worldviews about ‘America First’ precede other considerations. His actions have left his allies divided; key partners like the European Union and its major members condemn these sanctions, but other allies such as Italy and Australia have chosen to remain silent. Interestingly, the Hungarian Prime Minister (Hungary being a member of the ICC statute), suggested reviewing his country’s membership of the ICC, unequivocally supporting President Trump and practically disassociating with the ICC. Netherlands, the host state for the ICC, said that it “regretted” the US actions and will continue its ‘support’ for the International Criminal Court. 

America’s allies and US politicians and legal scholars are (starkly) divided in their stance, which would be a continuing reality in the coming days of this administration. Trump’ s rule book is quite categorical when it comes to specific issues like the one in Gaza. This leaves American partners with little choice – siding with the Trump Administration or opposing it. A ‘balancing’ act for most nations will be difficult diplomacy.

The European Council President remarked that these sanctions by the Trump Administration “undermine the international criminal justice system as a whole.” Legal experts have also criticised these, with some suggesting it is “assault on the rule of law” and a “direct attack on the post-World War II international legal order.” Certainly, these actions undermine the ICC, its independence, and its powers to deliver justice, but the power of any justice delivery mechanism lies in its ability to ensure effective ‘execution.’

Key questions such as the ICC’s ability to administer justice do arise, and especially when the case involves ‘state individuals’ belonging to nations that are not a party to the Rome Statute. Also, in its finding where the ICC issued warrants against the Israeli Prime Minister and Hamas’s Military Commander, it did draw an inference of ‘equivalence’ between the two. To bring two individuals; one that heads a recognised nation (though in breach of many UN resolutions) and another commanding a militant organisation is not ‘normal.’ The ICC might be well within its rights to investigate, conclude, and legally interpret, but there isn’t any ‘supremacy’ attached to it, and certainly not for non-members.

President Trump’s sanctions are a message to the world about his policy and initiative, but a certain ‘law’ defines, governs, and gives structure to International Relations. ICC is a part of that larger ‘law’ and ‘legal system’ giving the international world an important ‘avenue’ for criminal justice. Thus, these actions can be labeled as a ‘classic’ case of an extraordinarily powerful nation employing extraordinary powers, irrespective of the debate about their legality. The unfolding of these events only exposes a glaring fact concerning International Institutions. Their powers are neither ‘independent’ nor ‘institutionalized’. They do depend on member states to exercise power for all practical purposes. 

ICC’s decisions do set a precedent, which is open to interpretation but cannot be enforced. Its impartiality is subject to the ‘individuals’ who run the system and the ‘processes’ it adopts for its functioning. Trump’s sanctions challenge it and contest the International Legal Framework but also highlight the ‘need’ for a more unanimously accepted,  and empowered criminal legal body. Otherwise, it will end like the defunct international institutions set up in the inter-war years of the last century.