Turbulent Times Ahead for Global Justice and the Rule of Law: US Sanctions against the International Criminal Court

On 20 January 2025, Donald Trump was once again sworn in as president of the United States of America (US), ushering in a period of uncertainty for the future of global justice and the rule of law. This uncertainty is perhaps most evident in the approach adopted by the US to the International Criminal Court (ICC). This relationship has always been troubled, with some administrations seeking to undermine the Court’s authority and others adopting what I refer to as ‘engaged exceptionalism’— a policy of constructive and mutually beneficial engagement provided US nationals are not at risk of prosecution. More recently, however, both the US House of Representatives and President Trump issued fresh attacks against the Court in response to its arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, who are accused by the Court of war crimes and crimes against humanity in Gaza. This time, it appears the US is not only undermining the Court but may, in the words of the President of the ICC, also ‘jeopardise its very existence’. Drawing insights from my 2020 book chapter on this subject in Intersections of Law and Culture at the ICC, in this blog, I shed light on key themes and challenges that define this complex relationship, particularly the concept of ‘US exceptionalism’, and explore current legal controversies and implications for the global justice field.

US Exceptionalism

US exceptionalism is an idea that stems from the belief that the US, due to its unique history, political foundations, and global dominance, stands apart from other States. It implies qualitative superiority, portraying the US as ‘a beacon’ or ‘shining city on a hill’ and a global leader in economics, morality, and military strength. This exceptional status often translates into the perception that the US is not (or should not be) bound by the same standards or obligations as other States. As a cultural and political phenomenon, US exceptionalism is most evident in the government’s rejection of internationally recognized human rights frameworks and supranational constraints on sovereignty. For instance, the US withdrew from the International Court of Justice’s compulsory jurisdiction and has never recognized the jurisdiction of the Inter-American Court of Human Rights.

Scholars have long analyzed the intricacies of US exceptionalism. Michael Ignatieff (2005), for instance, categorizes it into three primary aspects: (1) Human Rights Exceptionalism, embracing unique civil and political rights interpretations while rejecting global acceptance of economic, social, and cultural rights; (2) Judicial Exceptionalism, dismissing the jurisdiction or influence of courts outside its borders; and (3) Exemption from International Norms, avoiding alignment with global agreements by non-participation, reservations, or non-compliance. Additionally, David Forsythe (2002) examines US exceptionalism through a political lens, arguing that it stems from the US’ self-perceived role as the preeminent enforcer of international peace and security. The rhetoric is that this responsibility exempts the US from the same oversight as other states. This position is deeply rooted in commitment to power politics and a long-standing reluctance to accept external judicial constraints.

While many nations claim exceptional status in specific areas, US exceptionalism is distinct Klimaseniorinnen-in two critical ways. First, the US often acts unilaterally, accepting minimal constraints on its own decision-making power. Second, US exceptionalism is underpinned by unrivaled military and economic power. This use of power as a coercive force underpins its primary position in the international order. Moreover, this ideology and practice of US exceptionalism play a significant role in its opposition to the ICC. Certainly, under a second Trump administration, it will continue to define US interactions on the global stage.

The Origins and Early US Stance on the ICC

The ICC was established in 1998 by the Rome Statute to prosecute individuals for genocide, war crimes, crimes against humanity, and later the crime of aggression (for ratifying States). Currently, 125 States have ratified the Rome Statute. The US, initially supportive of the idea, ultimately refused to vote in favor of the Statute over concerns about sovereignty, jurisdiction, and the potential for politically motivated prosecutions.

One central US objection to the ICC is the Court’s jurisdiction. The Court may exercise jurisdiction over any Rome Statute crime committed on the territory or by nationals of a State Party. This allows the ICC to prosecute individuals from non-member States if crimes occur in a State Party’s territory or are referred by the United Nations Security Council. Critics of the Court view this as an infringement on sovereignty, as it potentially subjects citizens of non-consenting States to ICC jurisdiction. This has already happened, for example, to individuals accused of crimes from Sudan, Myanmar, and Russia. Furthermore, the US has questioned the principle of complementarity, which dictates that the ICC can only act when national jurisdictions are unwilling or unable to prosecute. While the US argues that its robust legal system and military justice mechanisms can address such allegations, scholars have raised doubts about the effectiveness and impartiality of these mechanisms.

Despite its misgivings, the Clinton administration signed the Rome Statute in 2000 but did not submit it to the Senate for ratification. Subsequently, the Bush administration took a more adversarial stance, formally ‘unsigning’ the treaty and passing the American Servicemembers’ Protection Act (ASPA) in 2002, restricting US cooperation with the ICC and authorizing the use of force to free US personnel detained by the Court. President Bush further sought to undermine the Court by entering into bilateral non-surrender agreements to ensure US nationals would not be surrendered to the ICC.

Political Dynamics and Shifting Policies

The US approach to the ICC has varied across administrations. Unlike under President Bush, the Obama administration adopted a more pragmatic stance, engaging with the ICC on several important cases. For instance, in January 2013, President Obama signed the War Crimes Rewards Program (WCRP), offering rewards of up to 5 million USD for information leading to the arrest, transfer, or conviction of Lord’s Resistance Army (LRA) fugitives facing ICC warrants for their arrest. In March 2013, the US flew Bosco Ntaganda out of Rwanda, transferring him to ICC detention facilities in The Hague, where he was later found guilty of war crimes and crimes against humanity. A policy of constructive and mutually beneficial engagement emerged, which I call ‘engaged exceptionalism’.

The first Trump administration took a more confrontational approach, partly due to alleged crimes by US citizens that took place in Afghanistan – a State Party to the ICC. In 2020, Trump passed an Executive Order imposing sanctions on ICC officials, including then-Prosecutor Fatou Bensouda and Phakiso Mochochoko, then head of the ICC’s Jurisdiction, Complementarity and Cooperation Department, over investigations into alleged US war crimes in Afghanistan. These sanctions were widely criticized as an attack on the international justice system, with the Open Society Justice Initiative suing the Trump administration. Upon taking office in 2021, President Biden immediately sought to rebuild relationships with international institutions, including the ICC. His administration revoked the sanctions and resumed a position of engaged exceptionalism. While the sanctions on ICC officials were lifted, fundamental disagreements over the Court’s reach persisted.

The Proposed 2025 Illegitimate Court Counteraction Act and 2025 Executive Order

In response to the ICC’s arrest warrants against Netanyahu and Gallant, US lawmakers once again moved to attack the Court. In the final days of Biden’s administration, the US House of Representatives passed the ‘Illegitimate Court Counteraction Act’. This bill paves the way for sanctions against ‘any individual working to investigate, arrest, detain, or prosecute American citizens or an official from an allied US country, including Israel’, as well as to individuals or organizations that have ‘materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of any effort by the International Criminal Court to investigate, arrest, detain, or prosecute a protected person’. Introduced by Republicans, it was passed in the House with bipartisan support, including 45 Democrats.

The bill was sent to the Senate and was expected to be passed by President Trump. However, Senate Democrats voted to filibuster the bill, essentially blocking it from moving forward. A week and a half later, President Trump passed another Executive Order imposing sanctions on the ICC and, in particular, on its prosecutor. The Executive Order is alarming. It differs from previous legislation and sanctions, including Trump’s 2020 Executive Order, which also targeted specific ICC officials, by its sheer breadth. The current Executive Order declares a national emergency to address the so-called threat posed by the Court. It has the potential to target any foreign person, or organization, who has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any investigation, arrest, detention, or prosecution of a protected person (US citizen or citizen of an allied State, namely Israel). It further prohibits making donations or providing any goods or services to any person targeted by the sanctions. Although the full extent of the scope of the sanctions and penalties is still unclear, the threat of such actions can have a chilling effect on professionals, businesses, and organizations cooperating with the ICC, including financial and technology organizations such as Microsoft.

Within a day of his issuing the Executive Order, 79 States Parties, together with the Court, issued a joint statement condemning the sanctions and reaffirming their continued and unwavering support for the independence, impartiality, and integrity of the ICC. The international community is closely monitoring these developments, given the possible implications for international justice and the fight against impunity. Global justice NGOs and academics are lobbying Senators and preparing for another lawsuit against the Executive Order. Yet, cracks in European support for and commitment to the Court are beginning to show, with Poland saying that Prime Minister Netanyahu would be able to travel there for Holocaust remembrance events and Italy transferring a wanted ICC suspect back to Libya.

Broader Global Justice Implications

As a global superpower, the US plays a significant role in shaping international norms and institutions. Its engagement (or lack thereof) with the ICC influences the Court’s legitimacy and effectiveness. However, the newest sanctions are disruptive on a scale never seen before – especially when considered in the context of the US’s wider withdrawal from international institutions (like the Human Rights Council and World Health Organization) and the rules-based international order more generally. The sanctions undermine and complicate the Court’s efforts to hold powerful actors accountable, but that is exactly the point. US exceptionalism is once again on display where it uses power politics to achieve its aims. The current Trump administration will not shy away from seeking to destroy the Court. The ICC and the US should share a common goal: combating impunity for the most serious crimes.

While their approaches may differ, there is significant potential for collaboration that respects US sovereignty while supporting the ICC’s mission. This dynamic and multifaceted relationship deserves continued attention as it evolves in response to shifting geopolitical, legal, and technological landscapes. The stakes are high, not just for the US and the ICC, but for the future of international justice. Given the current challenges faced by the ICC, States must uphold their responsibility to investigate and prosecute serious international crimes, as the future of international criminal justice increasingly depends on robust domestic accountability mechanisms.