The latest US sanctions target the International Criminal Court as an institution, raising the stakes for allies that profess support for international justice but may now have to defend it against Washington.
Rumours have been circulating for weeks about the United States imposing tougher sanctions on the International Criminal Court (ICC), because of what US President Donald Trump sees as unfair targeting of Americans and Israelis for prosecution.
These sanctions finally came into effect on 9 October – the same day South African jurist Navi Pillay was awarded the Nobel Peace Prize for her contribution to international law.
The motivations behind these two diametrically opposing moves speak to the fragility of international law. They also highlight that ICC member states – including Australia, Japan, EU states and Canada – might need to decide between Trump’s program to dismantle the ICC “brick by brick” and their own commitments to international justice.
A long enmity
The US has never been a strong supporter of the ICC. While it took part in negotiations that created the court’s founding treaty in 1998, it did so partly to ensure the crime of aggression remained off the court’s remit for decades.
Former president Bill Clinton did sign the Rome Statute in 1998, but it was never ratified. George W Bush removed this possibility in 2002.
Congress went further later the same year by passing the American Servicemembers’ Protection Act (ASPA) (aka ‘the Hague invasion act’). The concern here was to ensure no US citizen could fall under the ICC’s jurisdiction. The US has since entered into many bilateral agreements, including with ICC member states, to ensure US nationals are not handed over to The Hague.
Afghanistan accepted the ICC’s jurisdiction in 2003. In 2017, prosecutor Fatou Bensouda called for a full investigation that included allegations of CIA torture in ‘black sites’ in Poland, Romania and Lithuania.
The appeals chamber confirmed this in March 2020. Consequently, the US imposed ‘smart sanctions’ on two ICC officials – including Bensouda – in September 2020. It has also targeted the UN’s expert on the Palestinian territories, Francesca Albanese.
This prevented her from all financial dealings or travel to the US. In April 2021, with Joe Biden in office, the sanctions were revoked. They were reimposed only 17 days into Trump’s second term, and they specifically targeted the new prosecutor Karim Khan. He had issued arrest warrants against Israeli prime minister Benjamin Netanyahu and former defence minister Yoav Gallant in November 2024 regarding their handling of the Gaza conflict.
These allegations include war crimes and crimes against humanity, but not genocide.
Khan was removed from office earlier this year due to allegations of sexual abuse. However, there is also some suggestion it was due to his support for the Palestinian investigation.
The ICC has not publicly issued any further warrants against Israeli officials, but rumours circulate that finance minister Bezalel Smotrich is the subject of a sealed warrant. And on hearing this rumour in May 2026, he ordered the forcible evacuation of the Bedouin village Khan Al-Ahmar in the occupied West Bank.
Trump on the attack
Later in 2025, Trump went on to sanction numerous ICC judges, three Palestinian civil society organisations along with the UN Special Rapporteur on the occupied Palestinian territory, Francesca Albanese. They were specifically targeted for their work on the Palestine case, which has drawn unprecedented attention to the court within a wider debate about Israeli conduct amounting to genocide.
While the International Court of Justice (ICJ) found in January 2024 there was a plausible case of genocide in Gaza, its full determination in the proceedings between South Africa and Israel is not expected to be delivered until after Trump’s second term in office.
To date, the most authoritative merits-based finding of genocide by Israel hails from the UN Commission of Inquiry’s September 2025 report. This was the last report delivered by Navi Pillay as the commission’s chair and it provides in forensic detail how Israeli conduct fulfils four elements of genocide under the 1948 Convention.
The latest sanctions
It seems that, with growing consensus emerging about the extent of Israeli crimes and the (small) chance of ICC action on the Afghanistan file, this was enough to precipitate Trump’s latest round of sanctions.
These new sanctions differ significantly from the earlier ‘smart sanctions’ that had only targeted Palestine-related ICC officials and human rights organisations.
The 9 October package targets the ICC as a whole, freezing all property holdings and blocking services and transactions with the Hague-based institution. It will mean the transfer of funds, salaries, cloud services, insurance and travel are significantly threatened, given US dollar hegemony.
While it is unclear if these new measures will criminalise US individuals and entities that engage with the court on a pro bono basis, they block any formal relationship. Uncertainty tends to produce a chilling effect, and it is likely that many will choose to avoid assisting the court with its investigations for fear of sanction themselves. If the full force of the measures is implemented, the court will struggle to carry on many of its functions, especially without strong European backing.
The ban is not all stick. It contains a carrot providing the court with a 180-day grace period allowing certain activities (including IT services and ICC pension funds) to continue. Over this period, the Trump administration expects “meaningful progress” or even these softening measures will lapse. It seems the administration is calling on its allies as member states of the court to push for a radical shift within the ICC, especially relating to the Afghanistan and Palestine investigations.
Yet the court has already responded by stating firmly that its mandate is not political and that it will “not be deterred” from “safeguarding the international order grounded upon the rule of law”. The Netherlands, Canada, France, Germany, Italy, Denmark, the UK and Japan have also issued a statement, reaffirming their continued and unwavering support for the independence, impartiality and integrity of the ICC. However, as it stands, this will not go nearly far enough either to protect the court or placate a Trump administration bent on destroying it.
Two alternatives must be considered.
First, some powerful states do have sticks they can use against the US. For example, the European Union could resort to the ‘nuclear option’ and impose its own blocking statute. This would require all individuals and entities under EU jurisdiction to not comply with the US sanctions. The ramifications are significant as parties could find themselves with opposing obligations. The US could also respond with a raft of counter-measures.
While the EU did not mention this possibility in its statement affirming support for the ICC on 10 October, these new US moves will embolden Spain and the Netherlands in their push to see it implemented.
A softer option is to turn to the example of Navi Pillay. In receiving the Nobel (instead of Trump himself), she embodied the values and institutions Trump is seeking to destroy.
Her stellar career in the struggle against apartheid in South Africa, in developing the field of international criminal justice, as UN High Commissioner for Human Rights and finally in bravely issuing her finding on Israel’s genocide proves that the international legal order is indeed under attack, but it still has some powerful and persuasive advocates.
Republished from The Conversation
Michelle Burgis-Kasthala
Michelle Burgis-Kasthala was Lecturer in Middle East Politics at the University of St Andrews (2008-2013), then Lecturer, Senior Lecturer then Professor in International Law at the University of Edinburgh (2013-2025) and ARC DECRA Research Fellow at ANU (2014-2018). I am currently Professor of International Law at La Trobe University.