Consequences for the International Criminal Court

By Noah Rothman

Friday, February 07, 2025

 

Donald Trump and his administration deserve all the credit they’re due and more for withdrawing (as we recommended) from some of the United Nations’ more suspect bodies, like the U.N. Human Rights Council and UNRWA. There are, however, more U.N. entities in which the United States still currently participates and others from which it abstains that are worthy of censure. Fortunately, the president doesn’t seem inclined to let up the pressure.

 

The International Criminal Court is among the most visible and activist of all the U.N.’s rogue extremities. It’s also one of the U.N. agencies most deserving of the sanctions the Trump administration imposed on Friday.

 

“The ICC’s recent actions against Israel and the United States set a dangerous precedent, directly endangering current and former United States personnel, including active service members of the Armed Forces, by exposing them to harassment, abuse, and possible arrest,” read a statement from Trump accompanying the sanctions order.

 

The statement suggests that the measures this administration will take against the ICC are anything but symbolic. The sanctions “may include the blocking of property and assets, as well as the suspension of entry into the United States of ICC officials, employees, and agents, as well as their immediate family members,” it continued, “as their entry into our Nation would be detrimental to the interests of the United State.”

 

The sudden discovery of concrete and tangible consequences for its actions may help the institution’s agents retreat from the fantasy world where they’ve comfortably resided. One of the provocations that made Trump’s maneuver necessary — the ICC’s attempt to seek arrest warrants for ranking members of the Israeli government for the crime of prosecuting the war that Hamas started on October 7 — suggests that the delusions to which its highest echelons are beholden have clouded ICC members’ judgment and undermined their credibility.

 

For example, when ICC prosecutor Karim Khan issued an order seeking the detention of Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, he referred to the “situation in the State of Palestine” as well as the “territory of Israel.” Anyone who inhabits our shared reality might have informed Khan that he had it precisely backward.

 

Khan framed the war Hamas inaugurated in 2023 as an “international armed conflict between Israel and Palestine.” That, too, is a fiction that’s necessary to justify the legal remedy the ICC is seeking, but it’s nonsense. In all but name, the West Bank is a distinct political entity from the Gaza Strip, and the war started by the sovereign power in control of the Strip has been limited to Gaza’s geographic confines – all conditions that betray the ICC’s motivated reasoning. But if the ICC has to massage the facts to justify the prosecution it desires, it cannot be trusted with prosecutorial powers.

 

But it never behaved as if this indictment was anything other than a political statement. ICC prosecutors would have struggled to prove its allegations against Israel: the “starvation of civilians,” “intentionally directing attacks against a civilian population,” “persecution,” “extermination,” and sundry other “crimes against humanity.” The evidence it musters to support its allegations includes the throttling of electricity, water, and other humanitarian assistance that Israel provided Gaza prior to the 10/7 massacre. ICC prosecutors would have struggled to support the notion that a combatant in a war is legally obliged to provide its adversary with commodities that have both civilian and military dimensions – like electricity, which Hamas uses to power and ventilate its tunnel network and ignite the rockets it fires on Israeli civilian targets. Doubtlessly, however, the ICC would have found plenty of experts willing to craft a double standard that applies only to Israel. That’s what these organizations do.

 

This episode is just one stain on an institution utterly despoiled by them. In a thorough filleting of the ICC in these pages last summer, John Bolton detailed the case against this kangaroo court. Beyond the indictment, he posited a sound U.S. approach toward this rogue outfit he deemed the “three noes”: “No U.S. cooperation of any sort with the ICC, no direct or indirect financial contributions to the ICC, and no negotiations with other governments to ‘improve’ the Rome Statute,” which establishes a framework to which some have appealed in the effort to jail U.S. government officials and servicemen for the crime of carrying out U.S. defense priorities abroad.

 

That’s sound advice, and the Trump administration seems willing to act on them and even build on them (just don’t tell the president who made the recommendation). When it comes to reining in the United Nations, there’s more work to be done. But the president is off to a strong start.