Explainer: Imposing Sanctions on the International Criminal Court—A Wrong Move By the United States?

Professor Uche Ewelukwa Ofodile | U. Arkansas School of Law, US

MAY 21, 2025 

JURISTnews - law students reporting the rule of law in crisis

The year 2025 promises to bring many significant developments in the field of international law. Expect calculated and strategic weaponization of international law. Expect direct and indirect attacks on international law and institutions. Expect attempts to weaken or change international norms and efforts directed at reshaping the existing international order. One of the institutions in the direct line of fire is the International Criminal Court (ICC), the first permanent world court with a mandate to prosecute individuals accused of heinous crimes like genocide, war crimes, crimes against humanity, and crimes of aggression. According to recent news reports, work at the ICC is slowly and alarmingly grinding to a halt, a direct result of a February 6, 2025, executive order, “Imposing sanctions on the International Criminal Court” (Executive Order 14203). The Executive Order is a direct response to the warrants of arrest for Israeli Prime Minister Benjamin Netanyahu and former Israeli defense minister, Yoav Gallant that the ICC’s Pre-Trial Chamber I issued on November 21, 2024. The warrants authorized the arrest of Netanyahu and Gallant, “for crimes against humanity and war crimes committed [in Gaza].” The Chamber had concluded that there were reasonable grounds to believe that Netanyahu and Gallant at the time of the relevant conduct each bore criminal responsibility for “the war crime of starvation as a method of warfare” and “the crimes against humanity of murder, persecution, and other inhumane acts.” In response to the Executive Order, on February 13, 2025, the Office of Foreign Assets Control updated its Specially Designated Nationals and Blocked Persons List; on the list is Mr. Karim A.A. Khan KC, the Prosecutor of the ICC. The Prosecutor has since lost access to his email and has had his bank accounts frozen. Although the Prosecutor stepped down temporarily from his position on May 16, 2025, for reasons unrelated to the sanctions, the sanctions on the ICC remain.

The ICC: What Is It? What Does it Do?

The ICC came into existence on July 17, 1998, when 120 countries adopted the Rome Statute of the International Criminal Court and became operational on July 1, 2002, when the Rome Statute entered into force. The significance of the ICC lies in the fact that “[f]or the first time in the history of humankind, States decided to accept the jurisdiction of a permanent international criminal court for the prosecution of the perpetrators of the most serious crimes committed in their territories or by their nationals.” The ICC investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community. In the event of a conviction, the ICC can impose appropriate penalties including imprisonment, fines, and a forfeiture of proceeds, property and assets derived directly or indirectly from that crime.[1] To date, 125 states, nearly two-thirds of United Nations members, have ratified the Rome Statute.

Why is the US Going after the ICC?

Why is the US going after a world court whose primary mission “is to help put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole“? The Executive Order accuses the ICC of asserting jurisdiction over and opening preliminary investigations concerning personnel of the US and certain of its allies, including Israel, without legitimate basis. It explicitly accuses the ICC of engaging in “illegitimate and baseless actions” targeting America and Israel and asserts that the ICC “abused its power by issuing baseless arrest warrants targeting Israeli Prime Minister Benjamin Netanyahu and Former Minister of Defense Yoav Gallant.” According to the Executive Order, the ICC’s actions “set a dangerous precedent, directly endangering current and former United States personnel, including active service members of the Armed Forces, by exposing them to harassment, abuse, and possible arrest.”

What Types of Sanction Does the Executive Order Impose on the ICC?

The Executive Order call for four actions: (i) condemnation of the warrants against Netanyahu and Gallant; (ii) sanctions against the ICC and specified foreign persons; (iii) rescission of funds to the ICC; and (iv) prohibition on future appropriation of funds for the ICC. The Executive Order calls on US allies “to oppose any ICC actions against the United States, Israel, or any other ally of the United States that has not consented to ICC jurisdiction.” Regarding sanctions, the Executive Order imposes “tangible and significant consequences” on those perceived to be responsible for the ICC’s transgressions. The sanctions are wide ranging and include blocking of property and assets, suspension of entry into the US of ICC officials, employees, and agents, as well as their immediate family members, and denial of funds to the ICC. The Executive Order also prohibits making of donations of the types of articles specified in section 203(b)(2) of the International Emergency Economic Powers Act (50 USC § 1702(b)(2)) by, to, or for the benefit of any person whose property and interests in property are blocked.

In sum, under the Executive Order, serious sanctions could be imposed on a wide group of people regardless of whether or not they are directly employed by the ICC and regardless of their nationality. Besides ICC employees, officials and agents, the Executive Order could reach hundreds of law professors, scholars, researchers, organizations, and financial institutions around the world that assist the ICC in one capacity or another. As Human Rights Watch noted:

US sanctions have serious effects on those targeted, who lose access to their assets in the United States and are denied commercial and financial dealings with “US persons,” including banks and other companies. US sanctions also have a chilling effect on non-US banks and other companies outside of US jurisdiction that could themselves lose access to the US banking system if they do not support the sanctions. US persons face penalties, including fines and imprisonment, for violating sanctions.

The order appears designed not only to intimidate court officials and staff involved in the court’s critical investigations, but also to chill broader cooperation with the ICC, affecting the rights of victims globally.

Does the ICC Have Any Defenders? Are There Possible Arguments Against the Sanctions?

The ICC has many defenders. Most scholars, non-governmental organizations, think tanks, UN experts, and current and former presidents of the ICC’s management body oppose the Executive Order and warn that both set a dangerous precedent. In a recent piece, current and former presidents of the Assembly of States of the ICC “urge[d] States, civil society, corporations, and citizens worldwide to rally in defense of the ICC.”[2] While admitting that the ICC “is not without flaws,” they expressed committed to the ICC’s vision of justice and its mandate to ensure that no one is above the law, regardless of power. According to them, “[e]fforts to undermine the ICC are attacks on the principle that law protects the weak against the powerful.”

Judge Tomoko Akane, a current judge and the President of the ICC, has expressed “deep regret” at the issuance of the Executive Order. In Judge Akane’s view, the Executive Order would “harm the Court’s independence and its impartiality and deprive millions of innocent victims of atrocities of justice and hope.” The ICC also condemned the Executive Order and “pledge[d] to continue providing justice and hope to millions of innocent victims of atrocities across the world, in all Situations before it.” The ICC also called on its 125 States Parties, civil society and all nations of the world “to stand united for justice and fundamental human rights.”

The Coalition for the International Criminal Court and more than 140 of its member non-governmental organizations and coalitions from around the globe also strongly oppose efforts by the US to impose sanctions on the ICC. In a joint statement, the Coalition “express[ed] strong, unconditional commitment to the ICC and its critical global mandate” and urged ICC member states to “[p]ublicly condemn the use of sanctions to undermine the ICC.” According to the statement, sanctions “are a tool to be used against those responsible for the most serious international crimes, not against those seeking justice.”

What is the Future of the ICC?

From all accounts, the sanctions are severely affecting the ability of the ICC to fulfill its crucial mandate. The sanctions strike at the core of judicial independence and the rule of law and raise concerns about the future of the international criminal law regime—a regime established to address impunity in our world.

First, given that the Executive Order is a direct response to the ICC’s action against Israel, there are concerns that it effectively creates a blind spot for justice regarding certain countries. This, according to critics, “not only legalises double standards and impunity but irreparably undermines the spirit of universality that the international justice system is built upon.” According to Agnès Callamard, Amnesty International’s Secretary General, the Executive Order “sends the message that Israel is above the law and the universal principles of international justice” and “suggests that President Trump endorses the Israeli government’s crimes and is embracing impunity.” To Callamard, the Executive Order is “vindictive,” “aggressive,” and “a brutal step that seeks to undermine and destroy what the international community has painstakingly constructed over decades, if not centuries: global rules that are applicable to everyone and aim to deliver justice for all.”

Second, the possible snowball effect of a US sanction on the ICC is a major concern. The US is not the only country or even the first country to attack the ICC. In November 2024, a Russian court ordered the arrest in absentia of ICC judge Haykel Ben Mahfoudh on a charge of “illegal incarceration.” The order of the Russian court came after the ICC issued arrest warrants for former defense minister Sergei Shoigu and armed forces Chief of General Staff Valery Gerasimov over Russia’s alleged war crimes in Ukraine. There are fears that the sanctions could open the door for many other countries to do the same. Even if other countries do not follow suit, the sanctions could seriously undermine the stature and standing of the ICC in the global community.

Third, in the short term, the sanctions could damage the ICC’s independent pursuit of international justice and accountability as they will likely “embolden perpetrators, present and future” and “negatively impact the interests of all victims globally and those who look to the Court for justice in all the countries where it’s conducting investigations.” Although many established democracies have strong justice mechanisms, the truth is that “[t]he ICC performs a vital role by investigating crimes under international law, often committed by the most powerful individuals, in situations where—without its involvement—the perpetrators would benefit from perpetual impunity.”

The future of the ICC may well depend on the outcome of recent lawsuits brought by US citizens challenging the Executive Order. In April, two law professors sued President Trump, the US Department of State, and others over Executive Order 14203. On May 5, Eric Iverson, a US citizen and decorated Army veteran, filed a lawsuit also challenging the constitutionality of the Executive Order.

Conclusion

Admittedly, “[a] court that has the mandate to prosecute individuals for committing the most egregious crimes is bound to come under attack. The ICC is not perfect and is urgently in need of reform. Over the years, many scholars and experts have called for reforms to improve the ICC’s governance and resource efficiency. However, it is one thing to criticize the ICC and call for its reform, and a completely different thing to take action calculated to completely undermine and possibly destroy the court.

The ICC “is a judicial body which performs functions that align with the interests of the international community by enforcing and promoting universally recognised rules of international law, including the law of armed conflicts and human rights law.” Not only does the ICC “represent[] the most significant legacy of the immense suffering inflicted on civilians by the world wars, the Holocaust, genocides, violence and persecutions,” it is indispensable today because atrocities continue to plague the globe affecting the lives of millions of innocent children, women and men.

Judging from the atrocities unfolding in many parts of the globe and the fact that the global rule of law is coming under threat from multiple fronts, “institutions like the Court are needed more than ever to advance human rights protections, prevent future atrocities and secure justice for victims.” Kelebogile Zvobgo, a visiting fellow in the Foreign Policy program at Brookings, warns that sanctions haven’t stopped the court’s work in the past and could backfire. According to Zvobgo, “sanctions are punitive and performative and will ultimately make US leaders look ineffectual. At worst, sanctions will undermine US credibility on the world stage and give cover to US adversaries such as Russia that also oppose the ICC, thereby eroding the international rule of law.”

Uche Ewelukwa Ofodile (SJD, Harvard) holds the E.J. Ball Endowed Chair at the University of Arkansas School of Law where she has taught a broad range of courses including Public International Law, Intellectual Property Law, Copyright Law, Technology and the Law, and International Trade and Investment Law. Prof. Ofodile is a life member of the Council on Foreign Relations and was a two-time Senior Fellow of the Mossavar-Rahmani Center for Business and Government at the Kennedy School of Government at Harvard University.

[1] Rome Statute, Article 77.

[2] The authors are current and former Presidents of the International Criminal Court Assembly of State Parties: Päivi Kaukoranta (2024-2026), Silvia Fernández de Gurmendi (2021-2023), O-Gon Kwon (2018-2020), Sidiki Kaba (2015-2017), Tiina Intelman (2012-2014), Christian Wenaweser (2008-2011), Bruno Stagno Ugarte (2005-2007), and Prince Zeid Ra’ad Al Hussein (2002-2004). See We Need the International Legal Order: A Call to Protect the International Criminal Court, 27 January 2025. https://www.justsecurity.org/author/iccasppresidents/

International Criminal Court warns against ‘retaliation threats’


The International Criminal Court prosecutors warned today against ‘individuals who threaten to retaliate’ against the tribunal or its staff, saying such actions might constitute an ‘offence against its administration of justice’. — Reuters pic

Friday, 03 May 2024 9:12 PM MYT

THE HAGUE, May 3 — International Criminal Court prosecutors warned today against “individuals who threaten to retaliate” against the tribunal or its staff, saying such actions might constitute an “offence against its administration of justice”.

The ICC did not say if the comment related to its investigation into possible war crimes by Israel or Palestinian groups in Gaza and the West Bank.

US media said this week the ICC might issue an arrest warrant for Israeli officials including Prime Minister Benyamin Netanyahu and that the latter had urged US President Joe Biden to prevent the court from doing so.

Today, the Hague-based office of ICC chief prosecutor Karim Khan said on X that it sought to “engage constructively with all stakeholders whenever dialogue is consistent with its mandate”.

“That independence and impartiality are undermined, however, when individuals threaten to retaliate against the court or against court personnel” if it “made decisions” about probes that fell in its mandate, it said.

“Such threats, even not acted upon, may constitute an offence” against the ICC’s “administration of justice”, it said.

“The Office insists that all attempts to impede, intimidate or improperly influence its officials cease immediately.”

Khan’s office declined to answer questions from AFP as to where the threats of retaliation may have originated from.

It also declined to comment when asked whether it was referring to its investigation into Israel and the war in Gaza.

The ICC opened a probe in 2021 into Israel, as well as Hamas and other armed Palestinian groups, over possible war crimes in the occupied Palestinian territories.

Khan has said this investigation now “extends to the escalation of hostilities and violence since the (Hamas) attacks that took place on October 7, 2023”.

The New York Times has quoted Israeli officials as saying that Israel Prime Minister Benyamin Netanyahu could be among those charged by the court.

The ICC was also weighing charges against Hamas leaders, the newspaper reported.

A series of Israeli officials has in recent days said any attempt by the court to take any action against Israel would be “outrageous”.

Netanyahu said on X on Wednesday that the ICC was “contemplating issuing arrest warrants against senior Israeli government and military officials as war criminals”.

“This would be an outrage of historic proportions,” he said, alleging that the ICC was “trying to put Israel in the dock”.

The United States said on Monday it also opposed the ICC’s probe into Israel’s conduct in Gaza.

The ICC is the world’s only independent court set up to probe the gravest offences by individual suspects, including genocide, war crimes and crimes against humanity.

It has previously issued warrants for national leaders — most recently Russian President Vladimir Putin over the invasion of Ukraine.

The war in Gaza started after Hamas’s October 7 attack on southern Israel resulted in the deaths of 1,170 people, mostly civilians, according to an AFP tally of Israeli official figures.

Israel’s relentless retaliatory offensive has killed at least 34,568 people in Gaza, mostly women and children, according to the health ministry in the besieged Hamas-run enclave.

 — AFP

OPINION

Legal experts debunk Israeli, US claims challenging ICC jurisdiction


A general view of the International Criminal Court (ICC) building in The Hague, Netherlands on April 30, 2024 [Selman Aksünger/Anadolu Agency]

by Anadolu Agency

May 3, 2024 


For days now, there is growing speculation that the International Criminal Court (ICC) is poised to issue arrest warrants against top Israeli officials for the ongoing war on Gaza.

Most of the hype has been fuelled by Israel itself, first with regular reports by Israeli news outlets about increasing apprehension among the top brass, followed by direct statements from Prime Minister, Benjamin Netanyahu, attacking the ICC and urging his Western allies to pressure the Court.

Another tactic employed by Israel and its supporters, particularly the US, has been to question the ICC’s power and jurisdiction to act against Israeli officials.

Spokespersons for the White House and US State Department have explicitly conveyed that the US does not believe the ICC has jurisdiction to move against Israel, specifically because Israel is not a signatory to the Rome Statute, the international treaty that forms the basis of the ICC.

Legal scholars, however, have refuted these assertions, stressing that Israel not recognising the ICC or not being a signatory to the Rome Statute does not have any impact on the Court’s powers.

READ: US Senators intensify efforts to block ICC arrest warrants against Israeli officials

The ICC has been leading an investigation since 2021 into potential war crimes committed by Israel and Palestinian groups dating back to 2014. The probe has grown to include ongoing attacks in the war in Gaza.

“Palestine is a state party to the ICC, and the ICC has accepted that it has jurisdiction over crimes committed in Gaza, the West Bank and East Jerusalem,” Gerhard Kemp, a professor of criminal law at the University of the West of England Bristol Law School, told Anadolu.

The ICC also has jurisdiction over crimes committed by Palestinian nationals outside the Territory of Palestine, for example in Israel on 7 October, 2023, he said.

“The short answer is that there is not much that Israel can do to challenge the ICC jurisdiction over the alleged crimes committed in Palestine,” he explained.

Another legal expert, Mark Kersten, asserted that the ICC is able to “very clearly, logically and legally exercise jurisdiction in this case.”​​​​​​​

The ICC has territorial jurisdiction on Palestine, which it understands as the Gaza Strip and the West Bank, including East Jerusalem, he said.

First, this means it has jurisdiction over any crimes committed by citizens of Palestine, so it has the power to act against Hamas members for the 7 October attacks, even though most of it happened on the territory of a non-state party, Israel, he said.

“Second, it has jurisdiction over any crimes committed on the Territory of Palestine … which means it has jurisdiction over any Israeli authorities who have committed mass atrocities, international crimes in Gaza or the West Bank,” explained Kersten, assistant professor of criminal justice and criminology at the University of the Fraser Valley in Canada.
‘Attempts to interfere, undermine and threaten ICC’

In the current situation, Kersten said the ICC is facing immense pressure from various countries, including Israel and the US.

“There’s definitely ongoing political pressure … I think pressure is probably too soft of a term. I have no doubt that various states are effectively threatening the ICC with certain consequences,” he said.

READ: ICC Prosecutor calls for end to intimidation of staff, statement says

“There are definitely ongoing attempts to interfere, undermine and threaten the ICC. It is up to the ICC Prosecutor and, indeed, to a certain extent the judges, to withstand that.”

On Friday, Prosecutor Karim Khan’s office issued a sharply worded statement asserting that “all attempts to impede, intimidate or improperly influence (ICC) officials must cease immediately.”

“Such threats, even when not acted upon, may also constitute an offence against the administration of justice under Article 70 of the Rome Statute,” read the statement, without mentioning any cases or countries.

Kersten pointed out that pressure tactics are “nothing new” for the ICC, with both the US and Israel having previously threatened the Court.

The administration of ex-President Donald Trump even “issued sanctions against the Prosecutor and certain other ICC staff, as well as threatening to sanction their families,” he recalled.

“We have seen US policymakers and lawmakers say the same, that they would support literally sanctioning the only independent permanent international criminal tribunal in the world,” Kersten added.
What happens if warrants are issued?

According to the swirling reports, the Israeli leaders who could soon be facing ICC warrants include Netanyahu, Defence Minister Yoav Gallant and Israeli military chief, Herzi Halevi.

If warrants are issued, all 124 countries that are state parties to the ICC are obligated to act.

“If an arrest warrant is issued against Netanyahu, he cannot legally step onto the territory of Germany or the UK or Canada,” said Kersten.

Being ICC member states, these countries will be obligated under both their own laws and also international law “to arrest and surrender Netanyahu to the ICC”, he said.

Non-state parties, however, do not have that obligation, he added.

On a potential timeline, Kersten said the ICC has often released “some of its most important and most significant decisions … at around 4 p.m. Hague time on a Friday, when the media isn’t really covering these issues.”

OPINION: Understanding how the ICJ and ICC work

As for the possible basis of the warrant, he said it could be “about the issues of starvation or the denial of aid to Gaza,” adding that these are points “the Prosecutor has spoken about repeatedly, especially since 7 October.”

Kersten also believes that any warrant against Netanyahu would be “unsealed” and publicly announced, citing past examples of warrants against Russian President, Vladimir Putin, or Libya’s Muammar Gaddafi.

However, there have been instances in the past where ICC judges have accepted the Prosecutor’s request to issue sealed arrest warrants, he said.

These can then be unsealed in “a moment of vulnerability for the accused, for example, during travel to a member state of the ICC,” he added.

“Then, all of a sudden, that state has the obligation to catch the accused and surrender them to the ICC, in this massive kind of surprise moment,” said Kersten.

For someone as high-profile as Netanyahu, the expert reiterated that he does not believe a “sealed arrest warrant” is likely.

“It would be diplomatically inappropriate to issue a sealed arrest warrant for the head of a government … or a defence minister,” he said.
Complementarity challenge

While Israel has no standing when it comes to questioning the ICC’s jurisdiction, the one thing it can do is challenge the admissibility of any case in which warrants are issued on the basis of complementarity, according to Kemp, the Bristol Law School professor.

“This is because the ICC has complementary jurisdiction, meaning the ICC can only try a case if a national criminal justice system with jurisdiction over the matter is either unwilling or unable to try the case,” he said.

When Israeli nationals are accused of war crimes in Gaza, if Israel can show that its own courts will prosecute them “in a genuine prosecution and not a sham trial, then the ICC will stand back and will let Israel proceed with the case”, he explained.

“Of course, the ICC will evaluate the situation with reference to all the available facts,” Kemp added.​​​​​​​

READ: Russia says United States is being hypocritical over ICC and Israel

 

America’s Ugly History with the International Criminal Court

by Ted Snider Posted onMay 31, 2024

On May 20, the chief prosecutor of the International Criminal Court announced that he was seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant as well as for Hamas leaders Yahya Sinwar, Ismail Haniyeh and Mohammed Diab Ibrahim Al-Masri.

Officials in Washington lashed out against the court and began preparations to pressure the ICC to back off on pursuing the arrests. Netanyahu and Gallant, the U.S. insisted, should be left alone or left to Israel’s courts.

The Hamas officials should be held accountable, according to the State Department, but not by the ICC. “The Israeli government should hold them accountable on the battlefield. And if not a battlefield, then a court of law,” State Department spokesperson Matthew Miller said. “We absolutely believe that Hamas should be held accountable. That could either be through the prosecution of the war effort by Israel. It could be by being killed. It could be by being brought to justice in an Israeli court.”

Congress is looking to take the lead in punishing the ICC. House Speaker Mike Johnson said, “Congress is reviewing all options, including sanctions, to punish the ICC and ensure its leadership faces consequences if they proceed.”

During a Senate Foreign Relations Committee, Secretary of State Antony Blinken was asked if the White House would cooperate on legislation that “includes the question of the ICC sticking its nose in the business of countries that have an independent, legitimate, democratic judicial system.” Blinken responded that he is “committed to doing that.” He added, “We want to work with you on a bipartisan basis to find an appropriate response” and that “there’s no question we have to look at the appropriate steps to take to deal with, again, what is a profoundly wrong-headed decision.”

Blinken also told the Senate Appropriations subcommittee he would “welcome” working on “bipartisan” sanctions against the ICC. However, the White House may be considering other steps to deal with the ICC that do not include sanctions.

On May 28, White House spokesperson John Kirby said that sanctions were “not the right answer” to deal with the ICC arrest warrants. It is not that the White House would not punish the ICC, but that “Sanctions on the ICC are not an effective or appropriate tool to address U.S. concerns,” White House press secretary Karine Jean-Pierre said, adding that the White House “will work with Congress on other options to address the ICC overreach.”

Still, the White House remains firmly committed to thwarting the ICC deliberation into issuing an arrest warrant for Netanyahu. “Let me be clear,” Biden said, “We reject the ICC’s application for arrest warrants against Israeli leaders.”

Washington has centered its argument on the grounds that a democratic nation’s legal system should be given priority to act first. Marjorie Cohn, emerita professor of law at Thomas Jefferson School of Law and dean of the People’s Academy of International Law, told me that “the ICC operates under the principle of ‘complementarity.’ That means the Court will assume jurisdiction over a case only if the home country of the accused is unable or unwilling to hold him legally accountable.”

The White House also argued that Israel is not a member of the ICC, so the court lacks jurisdiction over Tel Aviv. Additionally, the Biden administration said that because the U.S. is not a member, it should not have to support or follow the court.

But, the U.S. fully supported the recent ICC arrest warrant for Russian President Vladimir Putin over actions taken in Ukraine. Russia and Ukraine are also not members of the ICC.

Biden endorsed the arrest warrant for Putin. “Well, I think it’s justified,” the US leader said. “But the question is – [the ICC is] not recognized internationally by us either. But I think it makes a very strong point.” Blinken urged all member nations of the ICC to comply with Putin’s arrest warrant. Asked if European allies should “turn over” Putin, Blinken answered, “I think anyone who’s a party to the court and has obligations should fulfill their obligations.”

A reporter asked if the administration’s policy for Israel would impact the Defense Department’s work “with the ICC to provide evidence about Ukraine.” Defense Secretary Lloyd Austin answered, “Regarding the question of whether or not we’ll continue to provide support to the ICC with respect to crimes that are committed in Ukraine, yes, we continue that work.”

The separate standard for friends and enemies has consequences beyond the ICC. It nourishes the perception of the global majority and the newly emerging multipolar world that the U.S. has abandoned the universal application of international law for the self-serving application of the rules-based order. In doing so, it further damages the United State’s standing in the world and its pursuit of hegemony.

The ICC had jurisdiction to issue an arrest warrant for Putin because Ukraine accepted ad hoc jurisdiction of the court in 2014, meaning that crimes against humanity or genocide, but not crimes of aggression, committed on Ukrainian territory can be tried by the ICC.

But Palestine is an observer state in the UN General Assembly and also granted the ICC jurisdiction over its territory, including Gaza. On February 5, 2021, the ICC ruled that it does have jurisdiction over Palestine. What’s more, unlike Ukraine, Palestine is a signatory to the ICC’s Rome Statute.

The U.S. does not recognize the ICC. In 1998, 160 countries attended a conference to formulate the Rome Statute of the ICC. Many of those countries advocated for universal jurisdiction that would give the new court jurisdiction over crimes committed anywhere in the world. The U.S. blocked that universal jurisdiction and insisted that the ICC have jurisdiction only over crimes committed in countries that voluntarily signed the Rome Statute. This was a loophole the US planted for future exploitation.

In 2000, President Clinton signed the Rome Statute but did not send it to the Senate to be ratified. Two years later, President George W. Bush withdrew the signature. That ensured that the ICC could not prosecute Americans for war crimes.

That has always been an important concern for the United States. Current and former officials told The New York Times in 2023 that “American military leaders oppose helping the court investigate Russians because they fear setting a precedent that might help pave the way for it to prosecute Americans.” Following the decision to seek an arrest warrant for Netanyahu, Mike Johnson said, “If the ICC is allowed to threaten Israeli leaders, ours could be next.”

To ensure that never happens, in 2002, the Bush administration enacted the American Servicemembers’ Protection Act, or the “Hague Invasion Act,” as it came to be known. The act authorizes the US to use “all means necessary… to bring about the release of covered U.S. persons and covered allied persons held captive by, on behalf, or at the request of the Court.”

To be doubly sure, the Act banned “the provision of US military assistance . . . to the government of a country that is a party to the court.” That prohibition was extended in 2004 by the Nethercutt Amendment” to include several other types of economic assistance. NATO countries and major non-NATO allies were exempt. For all other countries – unless the President deemed it important to the national security of the United States – there was only one route to exemption. That was by entering a Rome Statute Article 98 agreement with the U.S., ensuring that they agree not to surrender Americans to the ICC, “preventing the International Criminal Court from proceeding against United States personnel present in such country.”

WikiLeaks revealed hundreds of cables that show how the US used the threat of sanctions to force countries into Article 98 agreements. A confidential December 2002 U.S. cable from Honduras states, “The US will help those countries that sign Article 98 agreements and cut aid to those that do not.”

The US sought agreements from 77 countries who joined the ICC “to make extraditions of Americans to the Hague impossible.” They exerted significant pressure. Romania’s foreign minister said he “can’t remember anything they put so much weight or interest into.”

The EU told member states that entering into an Article 98 agreement with the U.S. “would be inconsistent” with their ICC obligations. Human Rights Watch said the U.S. goal was “to exempt US military and civilian personnel from the jurisdiction of the ICC” and that signing the “impunity agreements… would breach their legal obligations under the Rome Statute.” In the end, at least 100 countries signed Article 98 agreements with the United States.

The long list of sanctioned countries eventually boomeranged against the United States, leading countries to look to Russia and China for help and impeding the U.S. wars on terror and drugs. They were gradually dropped.

In 2020, when the ICC tried to investigate American torture of terrorism detainees, the U.S. imposed sanctions on court officials. The Biden administration revoked the sanctions order in 2021. When the ICC resumed its investigation into Afghanistan, it decided to focus on the Taliban and the Islamic State in Khorasan Province and allow alleged U.S crimes to “take a back seat.”

Whatever the U.S. intent is – whether it is to protect its friend or itself – the hypocritically selective application of its policy undermines the universality of international law. It also reinforces the perception of the global majority and the newly emerging multipolar world that the U.S. is no longer a sponsor of international law but of a rules-based order that is invoked when it suits them or their friends and is not invoked when it doesn’t.

Ted Snider is a regular columnist on U.S. foreign policy and history at Antiwar.com and The Libertarian Institute. He is also a frequent contributor to Responsible Statecraft and The American Conservative as well as other outlets. To support his work or for media or virtual presentation requests, contact him at tedsnider@bell.net.

Israel’s criminal responsibility is shielded by political complicity


Flag with the logo of the of the International Criminal Court (ICC) on March 29, 2022 in Den Haag, Netherlands [Alex Gottschalk/DeFodi Images via Getty Images]


MEMO
by Ramona Wadi
walzerscent
November 24, 2024 

It remains to be seen how world leaders of the 124 states that are party to the Rome Statute will comply with the international arrest warrants issued by the International Criminal Court (ICC) against Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant. The ICC’s press release clearly states that both “bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.”

World leaders’ responses have varied from outright assertions of complying with the ICC arrest warrants, to calibrated replies and adamant rejection. Dutch Foreign Minister Caspar Veldkamp said that the Rome Statute would be implemented if Netanyahu sets foot in the country, as did Switzerland.

“Yes absolutely. We support international courts and we apply their warrants,” Ireland’s Prime Minister Simon Harris told RTE yesterday. Canadian Prime Minister Justin Trudeau stated, “We stand up for international law, and we abide by all the rulings and regulations of the international courts.” Jordan’s Foreign Minister Ayma Safadi insisted that the ICC warrants should be implemented.

Israel is painting the ICC decision as “the first time the ICC has ever issued arrest warrants against leaders of a democratic country”. However, although Israel describes itself as a democratic country, it is a settler-colonial enterprise founded upon ethnic cleansing and sustained by genocide.

BLOG: USAID’s guise is dismantled by Israel’s genocide in Gaza

“No outrageous anti-Israeli decision will prevent us – and it will not prevent me – from continuing to defend our country in any way,” Netanyahu stated. Gallant called the decision as “a dangerous precedent against the right to self-defence and moral warfare and encourages murderous terrorism,” while describing his role as a ‘”privilege”.

The US, of course, rejected the ICC decision. “Let me be clear once again: whatever the ICC might imply, there is no equivalence – none – between Israel and Hamas. We will always stand with Israel against threats to its security.”

Hungary’s Prime Minister Viktor Orban said he would invite Netanyahu to visit. “I will guarantee him that if he comes, the warrant will have no effect in Hungary”. Argentina’s Javier Milei rejected the ICC’s decision, stating that it “ignores Israel’s legitimate right to self-defence”.

Other countries adopted a cautious stance. Germany, for example, stated that it is “now examining what it means for us in terms of its international application”. France’s Foreign Ministry Spokesperson Christophe Lemoine described the ICC warrants as “legally complex” and said that France’s reaction would align with the principles of international justice. Austria described the arrest warrants as ludicrous but that the country would have to implement the ICC decision. Italy took a similar approach, saying that there is no equivalence between Netanyahu, Gallant and Hamas, but that the arrests would happen if either visited Italy.

“Australia respects the independence of the ICC and its important role in upholding international law,” Australian Foreign Minister Penny Wong stated.

Ahead of the G7 meeting to be held next week in which the ICC arrest warrants are to be discussed, Italy’s Deputy Prime Minister and Foreign Minister Antonio Tajani declared, “We respect and support the International Criminal Court, but we believe that its role should be legal rather than political.”

The ICC deals with criminal responsibility. However, the rhetoric of several leaders implies that a political stance will be influencing whether or not the ICC arrest warrants will be enforced if Netanyahu or Gallant visit the countries that are party to the Rome Statute. Almost all countries have prioritised their relations with Israel throughout the unfolding genocide in Gaza, and the ICC arrest warrants have only exposed the politics that underpin the overt or tacit support that Israel enjoys globally.

READ: Ex-France ambassador to Israel slams Germany’s refusal to comply with ICC arrest warrants

Countries that have stated they will implement the ICC’s decision could have taken a stance against genocide over a year ago. Yet, they waited until the arrest warrants to say they would comply with international law. What prevented these countries from abiding by international law prior to the ICC’s announcement?

As for the countries that attempted a neutral stance, the political deliberation is clear. Israel has committed genocide live-streamed. The criminal responsibility is clear – not only from the footage but also the constant incitement against Palestinians. Why does the G7 have to deliberate upon what action to take?

There is no unequivocal stance against genocide, but rather countries deciding upon opportune moments. What can be gleaned from most statements, including those that stated they would abide by the ICC’s arrest warrants, is that the purported political neutrality that supported Israel’s genocide in Gaza is still in full swing.

The ICC depends upon individual countries to enforce the arrest warrants. The Czech Republic, for example, described the ICC decision as “unfortunate” and said that the charges against Netanyahu and Gallant “should be substantiated by evidence”. What more evidence could the country possibly require to see the legitimacy in the arrest warrants? Why is genocide in Gaza still largely debatable, to the point that signatories to the Rome Statute are pondering their decision? Who is politicising the arrest warrants – the ICC or world leaders?

The European Commission has warned Orban over his stance, saying that refusing to implement the ICC decision would “breach international obligations”. True, but what of the EU’s obligations under international law. Why doesn’t the EC speak of genocide in Gaza? The reason, of course, is clear. The EC is beholden to Israel’s security narrative. Its stance merely reflects the positioning of one international entity reciprocating the status of another international entity. The politics, however, does not indicate a stance against the crime of genocide but merely compliance with the possibility of the ICC arrest warrants being activated, should Netanyahu visit any EU country that is bound by the Rome Statute.

It is likely that criminal accountability as the ICC seeks to establish will be thwarted by political interpretation of the arrest warrants. However, let us all keep in mind that Israel’s genocide in Gaza is marked by both criminal and political accountability. The ICC arrest warrants have exposed the latter, in light of the genocide, to the point that oblivion is no longer impenetrable.

Pentagon admits rejection of ICC arrest warrants has no legal basis

A Pentagon spokesperson admitted that the US's decision to reject the International Criminal Court's arrest warrants for Israeli leader Benjamin Netanyahu and former defence minister Yoav Galant are not grounded in law and reiterated that the US doesn't believe the ICC has jurisdiction over Israel and Gaza. Neither the US or Israel are member states of the ICC.

MEMO   November 22, 2024

Op-Ed

US War on ICC Isn’t New, Isn’t Just Coming From GOP, and Isn’t Just About Israel

This is a disingenuous bipartisan effort to discredit the ICC and international humanitarian law as a whole.

By Stephen Zunes ,

Truthout

August 7, 2026

People take part in a demonstration in defense of the International Criminal Court, holding banners reading "Hands off the International Criminal Court" and placards depicting Donald Trump, Vladimir Putin, and Ursula von der Leyen, at Piazza Ugo La Malfa, on July 16, 2026 in Rome, Italy.Simona Granati - Corbis / Corbis via Getty Images

The United States has launched an all-out assault on the International Criminal Court (ICC). In the past few weeks alone, the Trump administration has vowed to eradicate the top court, pressured countries to withdraw from it, and has attacked progressive political leaders like New York City Mayor Zohran Mamdani who seek to carry out its mandates.

These attacks are jarring, but they are not new, are not only about Israel, and are not just coming from Republicans.

The renewed chorus of attacks began on July 13, when Secretary of State Marco Rubio renewed a U.S. attack on the court by announcing a plan to “dismantle” the ICC “brick by brick, if necessary.” Rubio claimed that, without such action, U.S. police officers or border patrol agents “could be dragged before an international court, tried by judges from random countries across the globe, found guilty under international laws we neither consent to nor control, and then imprisoned thousands of miles from America.”

This claim is utter nonsense. The ICC has no jurisdiction over crimes committed by law enforcement officers in the United States. And while Rubio claims that the U.S. has not consented to the international humanitarian law that the ICC seeks to uphold, such law is actually drawn directly from binding treaties — including the Genocide Convention as well as the Geneva Conventions and related protocols, which the U.S. government has signed, ratified, and in many cases, incorporated into its own military manuals.

More revealing is Rubio’s complaint that the United States can’t “control” international law. No country can do that, nor should they be able to. The law is the law. As Kenneth Roth, the former longtime director of Human Rights Watch, put it: “Law is meant to bind people, not be controlled by them.”

In an op-ed for the Wall Street Journal accompanying his official announcement from the State Department, Rubio claimed that the court is “run” by “hostile Third World governments united by their enmity toward the U.S.” This is also untrue. Virtually every European government is a member of the ICC. None of its 18 justices are from countries with hostile state relations with the U.S., and all but three of those countries are inarguably democracies. Of the 73 people indicted by the ICC, none of them have been Americans and only six of them have been associated with governments allied with the United States.

Rubio’s attack was followed by continued attention on the court, this time from Mamdani, who called on federal authorities to act on an ICC warrant for Israeli Prime Minister Benjamin Netanyahu and arrest him during a planned trip to New York later this year. In response, Mamdani was falsely accused of unfairly singling out Israel, even though he explicitly stated that his position would apply to “any other war criminals.” His focus on Netanyahu was simply because no other indicted war criminal was scheduled to visit his city.

Only two Israelis have ever been indicted by the ICC. This hasn’t stopped prominent U.S. politicians like Democratic Senate leader Chuck Schumer (D-New York) to insist that the court has an “anti-Israel bias.” Similarly, Rep. Josh Gottheimer (D-New Jersey) has accused the ICC of a “continued, longstanding bias against the Jewish state,” and former Rep. Kathy Manning (D-North Carolina) has criticized what she referred to as its “efforts to single out and undermine Israel.”

What actually appears to bother these lawmakers is not the baseless claim that the ICC has an anti-Israel, anti-American, or anti-Western bias, but that it refuses to make exceptions for the United States and its allies. These demonstrably false statements from lawmakers reveal a disingenuous bipartisan effort to discredit the ICC and, by extension, international humanitarian law as a whole, in the eyes of the American public.

If the court has displayed any bias, it would be against Africa. Of the 75 people indicted by the ICC, 59 have been from African nations. Indeed, Mali, Niger, and Burkina Faso jointly announced their withdrawals from the court last year, claiming the ICC is an “instrument of neocolonial repression in the hands of imperialism.”

It is important to note that none of these anti-ICC U.S. politicians have complained about indictments and investigations against African leaders or militants, leaders of Hamas or the Taliban, or Vladimir Putin and other Russian officials. Their attacks on the ICC are because the court seems unwilling to arbitrarily exempt U.S. allies from their investigations.

The true nature of these denouncements was made quite explicit in a bipartisan bill called the “Illegitimate Court Counteraction Act” that passed the U.S. House of Representatives in 2024. That bill would have imposed draconian sanctions on non-Americans who directly or indirectly participated in ICC prosecutions of people who are lawful citizens or residents of the U.S. or its allies, so long as their own nation did not consent to ICC jurisdiction.

The bill was both particularly broad — it threatened anyone who was involved in arresting or detaining or even simply investigating U.S. allies — and harsh, in that it would sanction the family members of the people it targeted as well. The lawmakers’ argument was essentially that ICC investigations should be based not on the available evidence, the severity of the crimes, or the basis of international law, but on the geopolitical orientation of the government of those accused. The bill passed the House with significant Democratic support, but failed to reach the floor of the Senate.

It should be noted that the bipartisan attacks against the ICC are not new. In 2002, a bill drafted by right-wing Sen. Jesse Helms (R-North Carolina) prohibited the United States from cooperating in any way with the International Criminal Court. The bill was supported by then-New York Sen. (and future Secretary of State) Hillary Clinton and other prominent Democrats, and was signed into law by President George W. Bush.

This vindictive legislation also restricted U.S. foreign aid to countries that support the ICC. It also authorized the president of the United States “to use all means necessary and appropriate to free members of the United States military and certain other allied persons if they are detained or imprisoned by an international criminal court,” including military force, which led to its nickname: the “Hague Invasion Act.”

This law also initially constrained the Biden administration from providing intelligence it had gathered to the ICC regarding Russian atrocities in Ukraine until Congress passed an amendment which opened up some legal space by repealing restrictions on using U.S. funds and other cooperation in order to support the ICC’s investigations targeting Russian war crimes.

In 2024, Joe Biden became the first president to openly side with alleged war criminals against the ICC when he denounced as “outrageous” a report to the ICC recommending the indictment of Netanyahu and Israeli Defense Minister Yoav Gallant (along with three Hamas leaders) for war crimes. “We will always stand with Israel against threats to its security,” Biden underscored, despite the fact that the report never questioned Israel’s right to self-defense. Similarly, then-Secretary of State Antony Blinken called it “shameful” and “a profoundly wrong-headed” decision, which the United States “fundamentally rejects.”

A major argument in Washington against the ICC prosecution of Israeli officials was that Israel was not a signatory to the Rome Statute. The state of Palestine is, however, so attacks on and from Palestinian territory would unquestionably qualify. In any case, neither Russia nor Ukraine are parties to the statute, but that didn’t prevent the indictment of Russian officials and U.S. support for those indictments.

The attacks on the ICC have reached a new level since Trump returned to office. Executive Order 14203 has given the administration the unprecedented authority to impose sanctions on any foreigner who supports the ICC’s investigations of U.S. or Israeli citizens. This has been used to sanction the ICC’s chief prosecutor and 10 of its judges with financial restrictions and travel bans, leading to them not being able to use credit cards or have Google accounts and mandating prison sentences for any American providing them with services. It has also been used to sanction UN Special Rapporteur Francesca Albanese and three Palestinian human rights organizations as well. As a result, Georgetown University has removed Albanese, a distinguished Italian jurist, as an affiliate scholar, while the University of Southern Maine banned a conference she was set to virtually address which was scheduled to take place on campus.

Meanwhile, the respected human rights group Al-Haq can no longer fund its operations because its bank accounts have been closed. YouTube has removed hundreds of Al-Haq’s videos documenting Israeli forces’ human rights abuses. In addition, U.S.-based human rights groups with which Al-Haq had long collaborated are no longer able to provide financial support, and in many cases, have severed communications altogether due to threats of being targeted by the U.S. government or losing funding.

Ironically, the targeting of the ICC may actually get members of the administration or congressional allies in the war on the court in trouble. Article 70 of the Rome Statute criminalizes impeding, intimidating, or corruptly influencing any ICC official as part of an effort to prevent them from performing their duties or retaliate against them for having done so, a provision that even applies to non-signatories.

In his op-ed last month, Rubio claimed the ICC “threatens every aspect of our political and legal system.” He insisted that the ICC and its supporters are “waging a war against our country, not with bullets or missiles, but with statutes, compacts, and the force of so-called international law.” To address this alleged threat, he announced a new diplomatic campaign that will not only increase the administration’s pressure against the ICC, but will also withdraw foreign aid and impose other penalties on countries that continue to cooperate with it.

While the United States is among the minority of the world’s countries to have never joined the ICC, it has been pressuring member countries to pull out. The Trump administration during its first term successfully pressured the Philippines to withdraw in 2019. The U.S. pressured Hungary to announce its withdrawal last year, and Venezuela and Chad to announce their withdrawals last month, after Rubio announced his campaign against the court. Like Burkina Faso, Mali, and Niger, both Venezuela and Chad mentioned allegations of “bias” against the court, but Chad specifically referenced a request from the U.S. to review its membership.

The European Union has denounced U.S. “attacks or threats against the court, elected officials, personnel or those cooperating with the court” as “simply not acceptable.” In response to such objections by U.S. allies, American legal scholars, and others, Rubio has utilized the popular antisemitic dog whistle by claiming the ICC is backed and run by “smug globalists.”

Despite right-wing claims that the ICC could prosecute U.S. servicemembers for war crimes, the court can only prosecute those from countries that are unable or unwilling to prosecute themselves. While unevenly applied, the U.S. Uniform Code of Military Justice has generally been seen as adequate to forestall the risk of the ICC ever prosecuting American soldiers.

However, now that Secretary of Defense Pete Hegseth has dismantled Pentagon offices designed to enforce the laws of war and criticized what he calls “stupid rules of engagement” and “burdensome rules” on U.S. troops, which he implied could include the Fourth Geneva Convention, such protection from international prosecution might soon be threatened. In any case, the ICC has generally not targeted individual soldiers for atrocities, but those who commanded them.

There is some serious speculation that the administration’s assault on the ICC may be based in part of fear that U.S. officials could be targeted as well.

The post-World War II international legal system upon which the International Criminal Court is based was crafted by Western nations, particularly the idealists of the Roosevelt and Truman administrations. While there are some reasonable critiques of the limitations of this “rules-based international order,” it at least sent a message — however unevenly these principles may have been enforced — that the killing of civilians, torture, territorial conquest, maltreatment of prisoners of war, apartheid, and genocide are illegal, and that perpetrators of these crimes should be held accountable.

This is what Trump administration officials, members of Congress, and critics of Mamdani’s statement oppose. They are essentially rejecting the liberal international order in favor of a new system in which governments — at least the United States and its allies — are no longer bound by such principles.


This article is licensed under Creative Commons (CC BY-NC-ND 4.0), and you are free to share and republish under the terms of the license.

Stephen Zunes
Stephen Zunes is a professor of politics and director of Middle Eastern studies at the University of San Francisco. Zunes is also the co-author, with Jacob Mundy, of Western Sahara: War, Nationalism, and Conflict Irresolution (Syracuse University Press, 2023).

Sudan: ICC Holds First Darfur Trial

Landmark Case of ‘Janjaweed’ Militia Leader Opens April 5

Permanent premises of the International Criminal Court in The Hague, the Netherlands.
© 2018 Marina Riera/Human Rights Watch

(The Hague) – The International Criminal Court’s trial of Ali Kosheib, or Kushayb, will open on April 5, 2022, and offers the first opportunity to see a leader face prosecution for massive crimes committed in Darfur nearly 20 years ago, Human Rights Watch said today. Human Rights Watch issued a question-and-answer document and a video ahead of the trial.

“Kosheib’s trial is a long-awaited chance for victims and communities terrorized by the notorious Janjaweed militia and government forces in Darfur to see a leader held to account,” said Elise Keppler, associate international justice director at Human Rights Watch. “In the face of steep odds and no other credible options, the ICC is serving as the crucial court of last resort for Darfuris.”

The video focuses on the significance of the trial and on what else is needed by the Sudanese authorities for justice for atrocities committed in Darfur. The question-and-answer document covers:
Background on the accused, the Janjaweed militia group, and the conflict in Darfur,
How the trial will proceed and the participation of victims in the proceedings,
The significance of the trial and efforts to make it accessible to local communities,
Needed steps by Sudanese authorities to surrender former president Omar al-Bashir and three other fugitives, and
The current situation in Darfur and Sudan, including continued abuses.

“For all these years, those implicated in serious crimes and other abuses in Darfur and Sudan have largely suffered no consequences – and in some instances, have even been rewarded,” Keppler said. “Would-be abusers should take note that they can end up in court even if it is slow going. Now, Sudanese authorities should surrender the remaining fugitives, including former president Omar al-Bashir, so victims have the opportunity to also see them held to account.”

First ICC Trial on Darfur Crimes: Ali Mohammed Ali, Known as Ali Kosheib or Kushayb, Janjaweed Leader

Questions and Answers

Who is Ali Kosheib (also spelled “Kushayb”)?
What are the charges Kosheib faces at the ICC?
How did Kosheib come into ICC custody?
Why is Ali Kosheib’s upcoming trial and verdict significant?
Who else is sought by the ICC on alleged crimes committed in Darfur?
Why hasn’t Sudan turned over the other suspects to the ICC? And what more does it need to do?
When will Kosheib’s trial begin and what will it involve?
Will the victims be able to participate in the trial or receive reparations?
What are Kosheib’s rights as a defendant and will Kosheib be at the trial?
What are the penalties in the event that Kosheib is convicted?
How will victims and local communities be able to follow the trial in Sudan?
How did the ICC become involved in crimes in Darfur?
What is the current situation in Darfur?
What is the current situation in Sudan?

1.Who is Ali Kosheib (also spelled “Kushayb”)?

Ali Kosheib, or Kushayb, is the nom de guerre of Ali Mohammed Ali, identified by the International Criminal Court (ICC) as Ali Mohammed Ali Abd–Al-Rahman. Kosheib is believed to have been the principal leader of the Janjaweed militias in the Wadi Saleh area of West Darfur. He also held commanding positions in Sudanese government auxiliary forces, the Popular Defense Forces and Central Reserve Police.

In early 2003, the Janjaweed worked alongside the Sudanese government forces during its armed conflict with rebel groups to carry out a systematic campaign of “ethnic cleansing.” The campaign targeted civilians from African Fur, Masalit, and Zaghawa ethnic groups, from which the members of the rebel groups were drawn. Attacking from the air and land, Sudanese government forces and allied militias killed, raped, and forcibly displaced more than 2 million people from their homes and land. The Sudanese government recruited, armed, and trained the Janjaweed forces.

Kosheib is implicated as a key leader in attacks on villages around Mukjar, Bindisi, and Garsila in 2003-2004. Kosheib is also implicated in leading or participating in deadly attacks on ethnic Salamat communities in Central Darfur in April 2013.
2. What are the charges Kosheib faces at the ICC?

Ali Kosheib is charged with 31 counts of war crimes and crimes against humanity committed in in 2003 and 2004 in four villages, Kodoom, Bindisi, Mukjar, and Deleig, in West Darfur. Murder, attempted murder, pillaging, rape, torture, intentionally directing attacks against the civilian population, forcible transfer, destruction of property, outrages upon personal dignity, persecution, and cruel and other inhumane treatment are among the charges. Kosheib is charged both with directing attacks, and also mobilizing, recruiting, arming, and providing supplies to Janjaweed militia under his command.
ICC Darfur Trial Questions and Answers


Human Rights Watch identified Kosheib more than 15 years ago as an individual who should be investigated by the ICC for his alleged crimes in Darfur.

The International Criminal Court issued the first arrest warrant for Ali Kosheib on April 27, 2007. A second warrant, issued in 2018, was made public in 2020. These warrants included just over 50 charges of war crimes and crimes against humanity. The charges were consolidated into 31 charges ahead of what is known as the confirmation of charges hearings, which took place in May 2021. Following those hearings, ICC judges confirmed all charges and sent the case for trial.
3. How did Kosheib come into ICC custody?

Ali Kosheib voluntarily surrendered to the ICC in the Central African Republic. On June 9, 2020, the ICC announced he was in court custody.

The court indicated that the Central African Republic, Chad, France, the Netherlands, and the United Nations-African Union hybrid peacekeeping forces provided cooperation and assistance in his surrender. Kosheib’s first appearance before the ICC was on June 15, 2020.
4. Why is Ali Kosheib’s upcoming trial and verdict significant?

This trial is the first time a leader will be held to account for serious crimes allegedly committed in Darfur, albeit 18 years after the crimes began. The trial is a rare, long-awaited chance for the victims and communities the Janjaweed terrorized to see an alleged leader face justice. The trial is also the first by the ICC on crimes committed by state forces and allied militias in Darfur, and shows that those who commit crimes can still face justice, even over a decade later.

One Darfuri man who works with Darfuri refugees and internally displaced people said about the Kosheib trial: “We appreciate the role of the ICC, not in a vindictive way, but for justice, for people all over the world, to know that no one is above justice, and for every dictator who wishes to exterminate and kill his people or his neighbors to know he will face the law.”

Darfuris and activists in Sudan and across Africa have long campaigned for the surrender of Kosheib and other ICC suspects. Local communities and displaced Darfuris in Sudan demonstrated in support of Kosheib facing justice and held vigils for victims of attacks for which he is allegedly responsible.

A Khartoum-based activist who works with Darfuri victims told Human Rights Watch, “When we sat down with the victims [in the past two years in Darfur], we asked them what they need and they said, ‘We need justice.’… We cannot express our feeling, how happy we are that … justice is being prevailed.”
5. Who else is sought by the ICC on alleged crimes committed in Darfur?

Four other people, including former Sudanese president Omar al-Bashir, are facing ICC charges. All are fugitives of the court:
Former President Omar al-Bashir faces five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. He is currently in Sudanese custody and standing trial alongside other former officials for his alleged role in the 1989 coup against Sudan’s last elected government. In December 2019, al-Bashir was given a two-year custodial sentence for a corruption-related conviction.
Ahmed Haroun, former state minister for humanitarian affairs and former governor of Southern Kordofan state, is sought on 20 counts of crimes against humanity and 22 counts of war crimes. He is in Sudanese custody but has not been charged with any crimes under Sudanese law as far as Human Rights Watch has been able to determine.
Abdulraheem Mohammed Hussein, former defense minister, is sought on seven counts of crimes against humanity and six counts of war crimes. He is in Sudanese custody and is also facing domestic charges in relation to his alleged role in the 1989 coup.
Abdallah Banda Abakaer, leader of the rebel Justice and Equality Movement in Darfur, is charged with three counts of war crimes related to an attack on the African Union base in Darfur. Banda had initially voluntarily appeared before the court in 2010. The judges confirmed charges against him in 2011 and committed him to trial. The judges issued a warrant to assure his presence at the trial in 2014, and he has been at large since. The trial will not begin until he voluntarily appears or is surrendered to the court.

Two other Sudanese rebel leaders were charged with crimes related to the attack on an African Union base, but one of them, Saleh Mohammed Jerbo Jamus, died, and the ICC judges declined to confirm charges against the other, Bahar Idriss Abu Garda.

Human Rights Watch found that Sudanese government forces and allied militias committed crimes against humanity and war crimes, but due to the limitations of its research did not reach a conclusion on whether the crimes met the intent required for the crime of genocide. Human Rights Watch also found that rebel groups are also implicated in serious crimes including attacks on civilians, killings, abductions, and looting.
6. Why hasn’t Sudan turned over the other suspects to the ICC? And what more does it need to do?

The ICC needs greater cooperation from Sudanese authorities. Sudanese authorities need to transfer the ICC’s other suspects, including former president Omar al-Bashir, to the ICC without further delay. One Darfuri activist told Human Rights Watch in March 2022: “The Kosheib trial is a good step. But achieving full justice in Darfur relies on the surrender of Omar al-Bashir, Ahmed Haroun and Abdulraheem Mohammed Hussein and others.”

The cooperation required from Sudanese authorities includes both executing arrest warrants and responding positively to requests from the ICC prosecutor. The ICC needs access to documents, archives, crime scenes, witnesses, and other evidence relevant to Darfur cases, as well as the ability to travel to all parts of Sudan and work independently.

Though Sudan is not a party to the ICC, the UN Security Council Resolution 1593, which referred the situation in Darfur to the ICC, requires the government of Sudan to cooperate with the court.

Under former president al-Bashir, Sudan blatantly withheld cooperation with the ICC, and the ICC referred several instances of noncooperation to the Security Council, including the government’s failure to enforce arrest warrants against Ali Kosheib and Ahmad Haroun.

Sudan’s transitional government, which took office in 2019, promised to cooperate with the ICC and the transitional government welcomed former ICC prosecutor Fatou Bensouda to Sudan for the first time in October 2020. The authorities also signed a cooperation agreement with the ICC on the Kosheib case in February 2021.

In June 2021, the Council of Ministers approved the transfer of the three people in Sudanese custody to the ICC, but it is yet to happen. In October 2021, just prior to the coup by military leaders that ousted the transitional government, the ICC prosecutor, Karim Khan, who took up his position in June 2021, visited Sudan and discussed cooperation.

Khan returned to Sudan in December 2021, at which time Sudanese authorities indicated that a memorandum of understanding relating to cooperation signed between the Sudanese government and the ICC prior to the coup remained in effect.

Khan emphasized in a January briefing to the UN Security Council that Sudan’s accelerated cooperation with the ICC is the “only viable path to ensuring long-delayed justice for the survivors of crimes against humanity in Darfur.”
7. When will Kosheib’s trial begin and what will it involve?

The trial is scheduled to start on April 5, 2022 and should begin with a reading of the charges to the accused and opening statements from the Office of the Prosecutor and then the Defense. This will be followed by the presentation of evidence, especially questioning of witnesses. There is no preset length for the trial, but trials of this nature tend to last at least a couple of years.
8. Will the victims be able to participate in the trial or receive reparations?

The ICC has an innovative system of victim participation, which allows victims of alleged crimes to make their views and concerns known to the judges in the trial through their legal representatives. This is separate from any role as witnesses. Victim participation is one way to enhance the ICC’s resonance in affected communities.

On October 19, 2021, the Trial Chamber issued a decision allowing 151 victims to participate in the pretrial and confirmation of charges phases of the proceedings. In a decision on January 14, 2022, ICC judges authorized 142 victims to participate in the trial phase of the proceedings. These include 130 of the same victims who participated in the earlier phases of the proceedings (decisions related to the other 21 victims are pending based on available information), and 12 new victims.

The representatives can make an opening statement, oral submissions, present arguments on the merits, question witnesses, and present evidence at the trial. In the event of conviction, victims also may apply to the court for reparations, which may be individual or collective, symbolic or monetary, and are determined on a case-by-case basis.
9. What are Kosheib’s rights as a defendant and will Kosheib be at the trial?

Ali Kosheib is entitled to a fair and expeditious trial, conducted impartially, as provided under articles 66 and 67 of the ICC’s founding Rome Statute and international fair trial standards. They include the following protections:
Adequate time and facilities to prepare a defense;
Not to be compelled to testify against himself or to confess guilt;
A lawyer of his own choosing;
Presumption of innocence until proven guilty; and
Protection from torture and cruel, inhuman or degrading treatment or punishment.

Kosheib will be required to be in the courtroom during the duration of the trial in accordance with article 63 the Rome Statute.
10. What are the penalties in the event that Kosheib is convicted?

Penalties in the event of conviction are imprisonment for a maximum term of 30 years or for life in accordance with article 77 of the Rome Statute. Additional penalties include “forfeiture of proceeds, property and assets derived directly or indirectly from that crime.” The death penalty – which Human Rights Watch opposes due to its inherent cruelty – is not an available punishment at the ICC.
11. How will victims and local communities be able to follow the trial in Sudan?

Outreach by the ICC about the trial to the communities most affected by the crimes will be important to maximize the ICC’s accessibility and impact locally.

The ICC is planning a series of outreach events before the trial’s opening, although the court has been forced to limit some of its activities, due to the more difficult logistical and security environment caused by the October 2021 coup.

Events are slated to include hybrid information sessions with diaspora, media, and civil society based in Khartoum, and security permitting, in Nyala, the capital of South Darfur, and with community leaders living in internally displaced camps in Darfur. Participants will receive information and have the chance to see videos about the trial, and to ask questions to ICC staff, likely through a virtual connection from The Hague.

The ICC is preparing videos and radio programs that will include interviews with key players in the trial and “public service messages” about it. These programs, and video and audio summaries of the trial, will be broadcast by Radio Dabanga in Darfur, networks of radio and TV stations based in Sudan, and several radio stations that are accessible to refugee communities in eastern Chad.

The Outreach Unit has a WhatsApp group for media, which journalists can access by emailing Outreachhq@icc-cpi.int and a drop box folder for updated information on the trial in addition to information posted on the ICC’s website.

Due to competing resource and logistical demands along with security considerations, the ICC is not organizing a local delegation to travel from Sudan to attend the opening in The Hague, but such a delegation, which might include local activists, community leaders, and media, might be considered at later points in the trial.

Longer term, the ICC intends to set up screening and listening clubs to ensure continued accessibility to the proceedings. There will be regular discussions and updates regarding the trial in camps for displaced people, local communities living elsewhere in Darfur, and in refugee camps in eastern Chad, with the opportunity to ask questions. The Outreach Unit has indicated that it will also plan to resume staff outreach visits to Sudan and Chad as soon as practicable.
12. How did the ICC become involved in crimes in Darfur?

The ICC opened an investigation into the situation Darfur crimes in 2005 following a referral by the UN Security Council in Resolution 1593. As Sudan is not an ICC member, the referral was needed for the ICC to investigate crimes committed in Darfur. This was the first such referral by the UN Security Council.

The council has referred only one other situation to the ICC to date: the situation in Libya. Despite a vital need for other referrals given the gravity of crimes committed in countries that have yet to join the ICC, such as regarding crimes in Syria and Myanmar, the council has failed to act due to political considerations.
13. What is the current situation in Darfur?

Serious crimes in Darfur by government and government-allied forces have persisted over the years, fueled by massive impunity, including rewarding some of those implicated in crimes.

As recently as 2016, forces continued to attack Darfuris by air and ground, and crimes between 2010 and 2015 included significant killings of civilians, and rape and assault of women and girls. Two counterinsurgency campaigns in Darfur between 2014 and 2015, led by the government’s Rapid Support Forces (RSF), included repeated attacks on villages, burning and looting of homes, beatings, rapes, and executions of villagers. The RSF has included some former members of the Janjaweed, which also increasingly has become referred to simply as government-backed militias. Some of the RSF attacks were conducted with the support of the Sudanese Armed Forces and government-backed militias.

An extended ceasefire that began in 2017 helped reduced violence, but government forces and their proxy militias continued to carry out some attacks against civilians. Abuses again intensified in 2019, largely by local armed groups, in some cases implicating state security forces, in the wake of the withdrawal of a hybrid UN/AU peacekeeping force and again with the October 2021 coup.

While various factors, often localized ones, have played a role in the recent uptick in violence, the failure of the authorities over the last two years to provide meaningful civilian protection and justice for past and ongoing abuses has contributed to the escalation in violence and civilian harm. West Darfur in particular has experienced several serious bouts of violence since the beginning of 2021, with hundreds of people killed, tens of thousands displaced, and significant civilian property destroyed.
14. What is the current situation in Sudan?

Sudan’s first year of a three-year transition to democratic rule following the dramatic ouster of President Omar al-Bashir in 2019 was marked by a failing economy, political tensions, and continuing popular protests in support of quicker and more far-reaching justice and reforms. The Covid-19 pandemic compounded these problems. The government introduced some reforms but has not yet carried out most of the institutional and law reforms called for in the August 2019 constitutional charter. The second year of the pandemic was marred by political instability that slowed the pace of rights and rule of law reforms, and a dire economic situation that compounded public discontent.

On October 25, 2021, the military leaders of the transitional government carried out a coup, arresting civilian officials and dissolving the transitional government. Protesters took to the streets rejecting the coup, and security forces responded violently with lethal force, detaining protesters and political leaders, as well cutting off internet for almost three weeks.

On November 21, a deal was signed between the then-reinstated prime minister Dr. Abdalla Hamdok and the military, allowing the prime minister to be released from house arrest and to form a new technocratic government. Protesters and other political groups have rejected the deal. Hamdok resigned in January 2022. The security forces have continued to detain protesters, political opponents, and others in Khartoum and beyond.

Security forces in Sudan have repeatedly attacked or otherwise used excessive force, including lethal force, against peaceful demonstrators in Khartoum. Calls from regional and international officials for the military to halt the crackdown have not been heeded.

The current situation threatens the important, though limited, gains of the transition government on accountability, including cooperation with the ICC. While military leaders have not reversed early commitments, the current climate of crackdown and lack of accountability remains a threat to victims of crimes in Darfur and across Sudan.