The US government speaks of a campaign to eliminate the threat that the International Criminal Court poses to US sovereignty. Other countries are to be urged to withdraw from the Court, allies may be put under pressure, and new sanctions against judges, prosecutors and other staff have been announced. According to Rubio, this is ‘just the beginning’.
In doing so, the United States is not merely attempting to thwart specific investigations. It is attacking a Court established to prosecute individuals for genocide, crimes against humanity and war crimes when national legal systems are unable or unwilling to do so.
The US war against international law
The Trump administration has thus launched an open war against international law: against the principle that even major powers, their military personnel and their allies are bound by the same rules as everyone else. The International Criminal Court is a key target in this regard, precisely because it investigates international crimes regardless of who is suspected of committing them.
The trigger for this attack is the investigation into possible US war crimes in Afghanistan and the arrest warrants issued against the Israeli leaders Benjamin Netanyahu and Yoav Gallant. The US message is that international law should only apply as long as it does not affect US military personnel or US allies.
Far-reaching consequences
The consequences are already visible. The United States has imposed sanctions on judges and prosecutors at the Court. Palestinian human rights organisations that document crimes, represent victims and provide information to the Court have been affected. Banks, technology companies and other service providers are severing their ties with these individuals and organisations for fear of US sanctions.
The sanctions do not only affect those whose names appear officially on a list. They also affect others who cooperate with the Court. The message is clear: anyone who investigates international crimes or helps victims seek justice will themselves be punished.
Former Chief Prosecutor Fatou Bensouda explained what this means in practice during a meeting of The Rights Forum in May. After the United States had sanctioned her, she was no longer able to carry out normal banking transactions. Threats against her and her family were reported to the Dutch government, but her security arrangements were not stepped up. ‘I had expected that we would be protected whilst doing our work, but I neither felt nor saw that,’ said Bensouda. The Netherlands must not make that mistake again.
The Netherlands is the host country of the International Criminal Court
Our country is not merely a member state of the International Criminal Court, it is the host country. Other European countries therefore look to The Hague. If even the Netherlands fails to protect the Court why should other countries take political or economic risks?
Furthermore, Article 90 of the Constitution stipulates that the government shall promote the development of the international legal order. That constitutional mandate requires more than mere declarations of support and expressions of concern.
A first necessary step is the application of the European blocking statute. This would enable the European Union to prohibit European companies from cooperating in the implementation of US sanctions within the EU. Banks and other service providers would then no longer be able to exclude staff of the Court or organisations cooperating with it without facing consequences.
The House of Representatives has already called on the government to champion this cause at European level. The Netherlands must now use that motion to speak out publicly in favour of this and to form a European leading group. In addition, contingency measures must be put in place for banking transactions, digital services and other essential support for the Court and its partners.
Rubio leaves no room for doubt: the United States not only wants to put pressure on the International Criminal Court, but also to sideline it as much as possible. The Netherlands and Europe cannot, therefore, stand idly by. The US government does not defend international law that applies equally to everyone, but a legal order in which opponents may be held to account whilst allies may not. To paraphrase George Orwell: all states are equal, but some states are more equal than others.
Expressions of support for the ICC and statements of concern regarding Rubio’s remarks are not enough. Now, more than ever, it must become clear whether the Netherlands and Europe are prepared to genuinely defend the Court – even when this entails political and economic costs.
This is a joint article by Gerard Jonkman, Executive Director at The Rights Forum, and Thomas van Gool, Israel-Palestine expert at PAX.
