Court in a Storm: Israel, the ICC, and the Trump Administration

President Trump’s encounters with the U.S. legal system are well documented, but one of his early foreign policy challenges will involve justice at the international level.

In November 2024, the International Criminal Court (ICC) issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, as well as several Hamas leaders. The move sparked bipartisan anger in Washington, and the Trump administration appears primed to respond. The House of Representatives has already laid the groundwork. It passed a measure authorizing broad sanctions against court officials and any individuals who support the court’s work against Americans or U.S. allies. Though Senate Democrats blocked the bill, that chamber is still considering its own version of the legislation.

U.S. moves to punish the court and its officials are not new. The first Trump administration sanctioned several senior ICC prosecution officials, which prevented them from traveling to U.S. territory for most purposes and created other headaches (including making it difficult to use personal credit cards). By targeting anyone aiding the court, the currently proposed sanctions could be far more threatening. Most problematic, multinational companies providing services to the court—including vital information technology and administrative functions—may fear that doing so would put them afoul of U.S. law.

The Trump administration will be tempted to immediately implement any sanctions authorized by Congress (indeed, the administration likely has the power to impose sanctions even without congressional action). U.S. leaders would be wise to instead view sanctions as leverage in a broader diplomatic effort to steer the ICC in a direction that is both less problematic to the United States and, ultimately, more effective. 

Some U.S. rhetoric aside, the ICC’s central defect is not antisemitism or even animus against the United States and its allies. Indeed, in 2021, one of Karim Khan’s first moves as head prosecutor was to sideline, or “deprioritise,” allegations against the United States in Afghanistan. Roughly a year after the full invasion of Ukraine, Khan sought arrest warrants against Vladimir Putin and other senior Russian officials, moves applauded by representatives of both U.S. parties. Just last month, he requested arrest warrants for the Taliban’s leadership. It is a record that is hard to square with allegations that the ICC is a “kangaroo court” bent on persecuting the United States and its allies.

Rather, the ICC’s problem is architectural: The court has jurisdiction that is unmanageably broad. There remains a narrow but viable pathway toward an approach that both addresses U.S. concerns and yields a more effective form of international justice. 

The Court’s Reach and Its Grasp

The ICC was the international community’s response to atrocities and ethnic conflict following the end of the Cold War. The special tribunals created by the UN Security Council to prosecute crimes in the Balkans and Rwanda galvanized a movement to create a permanent court, which would stand ready to investigate serious crimes committed during conflict.

The scope of the court’s jurisdiction was one of the most intensely debated topics at the 1998 Rome Conference. Many voices advocated universal jurisdiction. The United States and some of its allies advocated jurisdiction based on UN Security Council authorization. The negotiations ultimately yielded a compromise: The court would have jurisdiction over alleged crimes committed on the territory of a member state, by the national of a member state, or in other situations when the Security Council has authorized court action. Critically, this structure allows the court to investigate and prosecute the nationals of non-member states when their alleged crimes take place on the territory of a member state.

Even if not universal, the ICC’s jurisdictional structure potentially places a huge range of alleged criminality on the court’s docket. But two decades into the court’s existence, the court has become hopelessly overloaded as it struggles to match its enormous mandate with very limited resources and state support. 

The contrast between the experiences of the ad hoc tribunals and the ICC is instructive. In the case of the special tribunals, powerful governments focused on specific conflicts, committing time, money, and leadership to backing international justice. The countries that bankrolled these tribunals—with the United States in the lead—supported them politically and even militarily. In time, that commitment produced results: The tribunal for the former Yugoslavia convicted nearly 90 individuals, including senior political and military officials. The Rwanda tribunal ultimately convicted more than 60 individuals, almost two-thirds of those it charged with crimes.

By contrast, the ICC has much vaster jurisdiction coupled with weaker and less consistent political support. The court’s statute and rules do not give its prosecutor a clear mechanism to consider whether there is the requisite political support for an investigation to have a meaningful impact.

Likely for that reason, the court moved very carefully when it began operations in 2003. In the court’s first years, it acted only when either the country in question had explicitly requested court intervention (as in the Democratic Republic of Congo, the Central African Republic, and Uganda) or when the UN Security Council had authorized a court role.

But the pattern soon changed, as the court faced pressure to engage with multiple new crises. In 2010, the office of the prosecutor opened its first investigation without explicit state support, in Kenya. In the next few years, the court opened investigations that brought it into direct contests with several non-member states. These included the investigation of potential Russian crimes in Georgia and Ukraine, crimes in Libya during the uprising against Moammar Gaddafi, Myanmar’s bloody campaign against the Rohingya, U.S. conduct in Afghanistan, and Israel’s alleged abuses in Gaza.

The number of active investigations has now reached 17, but the results—certainly in terms of trials and convictions—have been meager. In more than 20 years, the court has secured convictions in just four cases, and most of its arrest warrants have been without effect. It is hard to describe the court other than as an overstretched institution that dips into a variety of complex crises but rarely has a meaningful impact. The ICC prosecutor usually pursues just a few high-level cases before shifting energy and resources to the next crisis. Meanwhile, there is little to suggest that the court is having a meaningful deterrent impact. The latest round of atrocities in Sudan—and the Darfur region in particular—is the latest evidence that the threat of court prosecution does not seem to alter behavior.

A growing number of ICC member countries have either openly defied court arrest warrants or signaled that they might not respect them in the future. In October 2024, Mongolia rolled out the red carpet for Putin. Polish leaders have suggested that they would allow Netanyahu to visit the country, arrest warrant notwithstanding. French officials said that Netanyahu enjoys head-of-state immunity and equivocated on whether it would carry out an arrest. Germany too has been coy about whether it would respect the arrest warrants against Israeli officials. And Italy recently expelled a former Libyan official subject to a court arrest warrant rather than handing him to the Hague.

The ICC’s attempts to exercise jurisdiction over the leaders of countries that have not joined the court are not the entirety of the ICC’s effectiveness problem, but they do contribute significantly to a broader pattern of dysfunction. The court’s four convictions have all been against citizens of member countries. By contrast, its cases against non-member state nationals have yielded almost nothing. Even when indicted leaders like Sudan’s Omar al-Bashir have been deposed, new leaders have balked at cooperating with the court. There is little reason to expect that a post-Putin Russian regime or a new Israeli government would send off former officials for trial.

The ICC has the better of the legal debate about jurisdiction over non-member state nationals. Its view is that ICC member states are within their rights to delegate to the ICC the territorial jurisdiction that they undoubtedly possess when crimes are committed on their territory. But the political reality is that the ICC will only rarely win confrontations with countries that do not accept the court’s jurisdiction. And as developments in Washington suggest, the issue is creating the serious risk of a clash that could cripple the institution. 

Revisiting Rome?

How could the court and its members change course at this point? One possible, although unlikely, step would be for the UN Security Council to temporarily freeze court investigations into the conduct of individuals whose countries have not joined the court. Article 16 of the Rome Statute gives the council this power, which it has used sparingly to this point.

Securing the needed votes on the council would require adroit diplomacy from Elise Stefanik, the incoming U.S. ambassador to the United Nations. Of the permanent council members, three would likely be in favor of a freeze (the United States, Russia, and China). China has long rejected the idea that the court can act against countries that have not joined. Russia has argued the same, and it has a strong incentive to support a measure that would pause the arrest warrant against Putin and other Russian officials.

A key question is whether France and the United Kingdom—both ICC members—could be convinced not to veto the measure. To increase the odds of their acquiescing, the Trump administration would need to temper its anti-ICC animus considerably and make the case that jurisdictional change would be healthy for institutions. That argument could be effective; there is a growing awareness among major ICC member states that the current path is not productive or sustainable.

With or without a Security Council-mandated pause, the United States should work with other countries that have not joined the court to urge reform of the ICC’s reach. Taken together, the more than 70 countries that have not joined the court comprise the bulk of the world’s population, economic activity, and military forces. If they combine diplomatic forces, they may be able to nudge member states into altering course.

Plenty of these countries are awkward partners for the United States—in fact, some, like China and Russia, are rivals in most spheres. But the group of non-members is fairly diverse, and it includes the world’s three largest democracies—India, Indonesia, and the United States itself.

Certain key ICC member countries may also be sympathetic to changes in the court’s procedures. The Trump administration should focus, in particular, on Japan and Germany. These two countries are the court’s largest funders, and there are signs that both are uneasy with the court’s current trajectory. Several African governments might also come on board. The ICC’s past arrest warrants against African leaders have sparked anger in many parts of the continent (including among member states), and the African Union has issued sharp critiques of the court.

With the threat of broad sanctions in the background, the United States should pressure ICC member states to adopt either an implementing agreement or some other code of conduct that prioritizes certain investigations over others and emphasizes situations where there is a reasonable prospect for success. As Todd Buchwald has argued, there are several Rome Statute provisions that could be interpreted to narrow the court’s aperture, including the concept of “gravity,” the court’s complementary provisions, and its interpretation of head-of-state immunity.

A decision to abstain from cases against non-member state nationals would be a bitter pill for some court members to swallow. It would mean reconceptualizing the court as one for its member states and tempering (at least for now) its ambitions to universality. But limiting the court’s reach to member state nationals would not be a new step; when they activated the crime of aggression, member states did precisely that.

To mitigate what these countries would view as creating a two-tier system of international justice, the United States and other supportive permanent Security Council members should commit to not referring more situations to the court through the council. Those referrals have already become controversial, as they allow non-members to activate the court when it suits them politically.

For the strongest advocates of international justice, a package of changes like these would still mark a significant defeat for the court and the international law project more broadly. Painful as it may be to accept, political realities make the original vision of the ICC unworkable. A more restrained court and prosecutor would be able to focus on situations in which there is a chance of success and to avoid those likely to showcase its impotence.

For the court’s members, the choice is really between adapting to political realities and allowing a vulnerable court to navigate alone and risk becoming increasingly dysfunctional.