The US is threatening to destroy the International Criminal Court, the only court that can prosecute presidents for the most serious crimes. Why? And what does this mean for Ukraine?

The International Criminal Court (ICC) is the only one in the world that has the right and jurisdiction to prosecute heads of state for the most serious crimes: genocide, aggressive war, crimes against humanity, violations of humanitarian law. Since the beginning of the full-scale invasion, the court has begun investigating crimes committed in Ukraine, and since September 2023 it has opened an office in Ukraine. It is currently investigating the forced deportation of children from occupied territories and shelling of infrastructure, and is also studying other crimes. The ICC is an independent permanent court, but in reality it cannot act separately from the interests of various states, including the United States, which is not even a member of this court. Now the United States is unhappy that the ICC has requested an arrest warrant for the Prime Minister and former Minister of Defense of Israel. Babel correspondent Oksana Kovalenko spoke about this with interlocutors in Ukrainian legal and diplomatic circles and four international lawyers. They are almost 100 percent sure that the US will impose sanctions on the ICC and thereby, if not block it, then complicate its work. For Ukraine, this will mean that the only court that (at least theoretically) can put Vladimir Putin on trial will cease to function.

Every year, the member states of the International Criminal Court (ICC) meet for an Assembly to discuss current cases. On December 10 of this year, at the regular Assembly, ICC President Tomoko Akane said that the court was threatened by two members of the UN Security Council. She did not name the countries, but from her words it is clear that we this refers to Russia and the United States of America. Russia has put the judges who issued the arrest warrant for the Russian president on the wanted list, but it cannot significantly harm the court. Unlike the United States.

The United States has been threatening the International Criminal Court with sanctions for six months. This came after the courtʼs prosecutor, Karim Khan, asked the ICC judges to issue arrest warrants for leaders of both sides of the latest Palestinian-Israeli war: not only Hamas leaders, but also Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Galant. Khan said that Netanyahu and Galant are suspected of crimes that include murder, deliberate attacks on civilians, and starvation of civilians as a method of warfare.

The US was outraged by the courtʼs statements specifically about the Israelis, because for the US this country is its closest ally. President Joe Biden said that Israel and Hamas cannot be compared, and the US "will always support Israel in case of threats to its security." But the Democratic Party and the Joe Biden administration limited themselves to statements.

After the American elections, when it became clear that the Republicans had not only won the presidency, but also a majority in both houses of Congress, the threat to the International Criminal Court became quite real. Republicans are already threatening the court with sanctions. And one Republican politician did not even rule out that the United States could invade the Netherlands, where the court is physically located.

Babelʼs sources close to the ICC, Babelʼs interlocutors in diplomatic and legal circles say that the US may impose sanctions in the near future, perhaps even before Trumpʼs inauguration. And they are almost certain that sanctions will appear after the inauguration.

The ICC has been criticized for its ineffectiveness and selective nature of justice — but its capabilities are limited by the goodwill of the countries that created it.

As part of the international legal system, the ICC reflects one of the greatest hopes of humanity. This hope is that punishment (or at least fair sentences) will overtake the most serious criminals: the leaders of countries that commit genocide, crimes against humanity and war crimes. It is the ICC that deals with such crimes. It alone has the right to prosecute the highest officials: the president, the prime minister and the foreign minister, who are usually granted immunity.

The International Criminal Court is often criticized for its ineffectiveness. African countries have especially many complaints about it. They criticized the ICC for de facto becoming not a true international court, but a court against weak (read: African) countries. Indeed, until 2018-2019, the court mostly investigated crimes committed by generals and high-ranking officials of African countries. But this situation has changed.

Six years ago, ICC prosecutors began investigating crimes in Georgia, Palestine, Afghanistan, Venezuela, Bangladesh, and other countries. After Russia’s full-scale invasion, investigations into crimes committed on the territory of Ukraine also began. Many cases were activated after Karim Khan was elected as the new ICC prosecutor in February 2021. Already under his leadership, prosecutors have requested arrest warrants for senior officials in South Ossetia, the president of Myanmar, the top Hamas leaders, Russian President Vladimir Putin, and Israeli Prime Minister Benjamin Netanyahu.

Another complaint against the court is the small number of convictions in 20 years of work. This can be explained by the fact that the ICC does not consider cases in absentia if the suspect is not in the dock. That is why there are currently 30 criminals wanted in ICC cases in the world. Among them is Vladimir Putin.

America is a key architect of the international justice system, which is supposed to be independent — but it seeks to control it.

Historically, the United States has supported international justice since the early 20th century. After World War I, the administration of President Woodrow Wilson took several steps to try German Emperor Wilhelm II. At the end of World War II, America played a key role in establishing the International Military Tribunal at Nuremberg. At that time, British Prime Minister Winston Churchill proposed executing German war criminals, but US President Franklin Roosevelt convinced the British government to try them.

The creation of the International Criminal Court within the UN was a US initiative. Its draft statute was ready by 1994. At that time, the most high-profile international events were the atrocities committed by the military in Yugoslavia and Rwanda. The UN Security Council created tribunals to investigate these crimes. Security Council members, primarily the US, influenced the most important aspects of these tribunals: the appointment of prosecutors, the selection of judges, and the budget. The US wanted such influence in the International Criminal Court. They insisted that the permanent members of the Security Council determine which cases to investigate, which would effectively mean a veto on any case — that is, the ICC could be controlled. The international legal community was not satisfied with this.

British lawyer Philip Sands, who worked on the creation of the court, writes in his book Lawless World that the ICC ultimately came about because of a US mistake. This happened in 1998 at a special legal conference in Rome, where 148 countries were supposed to adopt the statute of the future court. In the last hour of the last day of the conference, the head of the American delegation called for a vote on the text of the statute. He hoped that most states would not vote, understanding that there was no unanimity — and there was none. The vote took place: only seven participating countries voted against the statute. The US voted against, along with China and Israel. Despite this, the ICC was created. President Bill Clinton signed the statute of the court, but the US never ratified it.

As early as January 2001, when George W. Bush came to power, his administration began a campaign against the ICC. After the September 11 attacks, the United States launched a “war on terror,” and then-Defense Secretary Donald Rumsfeld said his concerns about the ICC were growing because the court might try to establish jurisdiction over American servicemen. In May 2002, the George W. Bush administration announced that it would “rescind” its signature on the Rome Statute. And within three months, Congress had passed the U.S. Servicemen Protection Act, which lawyers call the “Hague Invasion Act.”

This law allows the US president to “use all necessary and appropriate means” to release any US citizen “held or imprisoned by the ICC.” It prohibits the US from cooperating with the ICC, including sharing any intelligence. Finally, it prohibits the participation of US troops in UN peacekeeping operations unless the ICC grants them full immunity from prosecution.

Lawyer Philip Sands calls these actions a policy of double standards: criminal courts are good enough for citizens of all countries, but not for Americans.

But the worst relations between the US and the ICC were during the time of Donald Trump. The then ICC prosecutor, Fatou Bensouda, asked for permission to investigate crimes committed in Afghanistan, including by American soldiers. Trump criticized the ICC from the rostrum of the UN General Assembly, and his administration canceled Bensouda’s visa — although the investigation did not begin. Sanctions against Bensouda personally did not stop the court, the investigation nevertheless began in 2020, and already in June 2020 Trump imposed sanctions against the ICC in general. He did not have time to seriously harm the court, because his successor, Joe Biden, lifted these sanctions in the spring of 2021.

The new US Presidential Administration has many ways to disrupt the work of the ISS

In June 2024, when the ICC was only considering issuing arrest warrants for the Israeli prime minister and defense minister, Republican Congressman Charles Roy introduced the “Anti-Illegitimate Trial” bill — referring to the ICC. It would require the president to impose sanctions on any foreigner who helps the ICC investigate Israeli crimes: seize their property or money, revoke their visas.

The House of Representatives voted for the bill in June of this year. It was sent to the Senate in September. Babelʼs interlocutors are concerned that Republicans will pass it, since they now have a majority in the Senate.

In addition, the US Congress annually allocates funds for international programs, including the ICC, through the State Department budget. Also, in 2024, Congress authorized the US president to transfer intelligence information about Russian crimes to the International Criminal Court, if requested.

In the 2025 budget proposal, Republicans have already banned such cooperation and have also stipulated that any payments to the ICC are now prohibited. The bill has already been passed by the House of Representatives and forwarded to the Senate. Finally, the US president can impose sanctions by executive order.

Translated from Ukrainian by Anton Semyzhenko.