There are two major international courts in The Hague that can easily be confused: on the one hand, the International Court of Justice (ICJ) of the United Nations (UN), which hears inter-state disputes and is located in the historic “Peace Palace”. On the other hand, there is the International Criminal Court (ICC), which has only been prosecuting war criminals since 2002 and is located in a much more modern building made of glass and concrete. Not all 193 UN member states are represented here, but only 125 of them. Among them are not the likes of the United States, Russia and China, as well as a number of countries in Asia and North Africa.
When US Secretary of State Marco Rubio recently threatened to tear down the court "brick by brick", it was clear that he was referring to the ICC. In a statement, his department listed the tools the US is considering using in its campaign against the court - such as imposing entry bans on ICC officials or strengthening sanctions against the court and its affiliated organizations. There is even talk of stricter control over those countries “that refuse to reject the false authority of the ICC and at the same time rely on help from the US”.
The US is increasing pressure on The Hague
Although the US has repeatedly intervened in the ICC's affairs, its new approach has attracted the attention of international law experts around the world.
”The US and Marco Rubio have actually now made public something that has been happening for over a year - namely, that the US is exerting diplomatic pressure on other countries by various means to change their positions and, in part, their voting behavior regarding the ICC”, believes Andreas Schüler, head of the “International Crimes and Legal Responsibility” program at the European Center for Constitutional and Human Rights (ECCHR) in Berlin. "And the fact that this is now being declared a campaign, of course, shows once again that there is strategic thinking, that its scope is being expanded, that other countries that are also not members of the ICC are being attracted, in order to exert pressure on them as well," says Schuler.
A court from which no perpetrator should be able to escape
The United States is not a member of the International Criminal Court - therefore, acts committed on its territory cannot be considered in The Hague. On the other hand, the ICC has jurisdiction when someone is charged with crimes committed in a member state - on this basis, for example, arrest warrants were issued for Russian leader Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu.
The existence of the ICC can be explained by the lessons of history: after World War II, the Nuremberg trials against some members of the Nazi leadership laid the foundation for international criminal law. And when war crimes tribunals were held in the 1990s, after the war in Yugoslavia and the genocide in Rwanda, the call for the establishment of a permanent institution was heard.
According to Kai Ambos, an international law specialist at the University of Göttingen, it is about the “fundamental question of accountability”, regardless of whether it is Ukraine, Iran or Gaza. “Such grave crimes cannot be allowed to be committed, regardless of the conflict, and the main responsible persons - and these are above all state leaders - to go unpunished. This is unacceptable for the victims, but also for all of us," says Ambos.
Marco Rubio motivated his attack on the ICC by saying that this court "thousands of miles away" from the United States can decide the fate of Americans - for example, ICE agents. However, there are no pending cases against American citizens at the ICC. The actions of federal ICE agents are carried out mainly on US territory, and the ICC has no jurisdiction there. The situation is different with the targeted killings of suspected drug traffickers in the Caribbean: former ICC prosecutor Luis Moreno Ocampo assessed them as a possible crime against humanity in November.
How can the court resist the pressure?
Kai Ambos fears that this could have an effect - ICC prosecutors could show greater leniency towards US suspects. “And we have the problem of excessive compliance with sanctions – that is, even companies outside the US are saying: “We are no longer going to cooperate with the institution because it threatens our business in the US.” Last year, the US State Department imposed a whole series of sanctions against the ICC and individual judges.
The EU immediately supported the ICC after Rubio's threats. So did German Foreign Minister Johann Wadeful, who said that the ICC "makes the world safer and fairer".
In 2022, amid the full-scale Russian invasion of Ukraine, the US Senate made a similar statement. In a resolution, the ICC was praised as "an international tribunal that seeks to uphold the rule of law" and the investigations against Russia were welcomed. One of the co-authors of the text, submitted by the recently deceased Republican Senator Lindsey Graham, was the current US Secretary of State Marco Rubio.
Author: David Ell