Barely a month appears to go by without Donald Trump making a fresh attempt to destroy the international rules-based order. The US has pulled funding from dozens of international institutions, shut down USAID and withdrawn from the Paris climate agreement. Nato may survive on paper, but Trump has made clear that he has little interest in coming to the aid of any ally that is attacked. The Board of Peace is clearly an attempt to sideline the United Nations.
But the state department’s announcement last week that it wishes to dismantle the international criminal court “brick by brick” could be Trump’s most frightening move of all.
This is not an idle social media post sent out late at night; there is no chance that the next person to speak to Trump might change his mind. It is now official US policy to destroy the ICC, and the administration is prepared to go to extraordinary lengths to do so.
Nations that do not fall into line will be punished. The state department has promised “increased scrutiny of nations that refuse to reject the ICC’s false authority while relying on US assistance”, particularly targeting those countries that “enjoy the benefits of the US security umbrella”. That will include the UK, a country that contributes just over £15m a year to the ICC, making it the fourth largest donor after Japan, Germany and France.
Travel and sanctions bans have already been imposed on judges and senior officials; now more will be targeted. As one of those previously threatened with sanctions told me, it can result in individuals being completely cut off from modern life. Personal bank accounts are shut down, while a whole host of US apps and websites, from Uber to booking.com, are off-limits. Email accounts can be blocked – Microsoft and Google are US companies. For the court itself, it means backing up evidence previously held on Microsoft systems.
The state department campaign also includes working with other nations that are not part of the ICC, suggesting that the US could ally itself with Russia and China.
Make no mistake, this is an existential crisis not just for the ICC but the very idea of international justice. The most powerful nation on Earth and the supposed leader of the democratic west is aligning itself with dictators and autocrats to prevent those accused of genocide, ethnic cleansing and war crimes from ever facing justice.
The US has had a complicated history with international justice. It was integral in the establishment of the post-second world war Nuremberg trials but was reluctant to ratify the genocide convention, only doing so in 1988, four decades after it was passed by the UN general assembly.
The issue was always one of self-preservation, rather than principle. For generations of US politicians, mainly Republicans but including some Democrats, the very idea that judges in other countries could hold American citizens to account was a non-starter. Until now, successive US presidents have generally accepted the idea of international justice even if, hypocritically, they did not want it to apply to them.
The US refused to sign the Rome statute that created the ICC in 2002, but it did not use its power to prevent its birth. In 2005, at the height of the Darfur genocide, it allowed the UN security council to pass a resolution authorising the ICC to investigate, and if necessary prosecute, those accused of war crimes in Sudan. Under Joe Biden’s presidency, it also encouraged the ICC to prosecute Vladimir Putin for alleged war crimes committed in Ukraine.
For Trump, though, the ICC has always been a threat. He imposed sanctions on court officials during his first term, following an investigation into alleged war crimes committed by US troops in Afghanistan.
The campaign against the court ratcheted up after his return to office last year. The ICC’s chief prosecutor, Karim Khan, had issued an arrest warrant for Israel’s prime minister, Benjamin Netanyahu, accusing him of committing war crimes in Gaza. In response, Trump imposed fresh sanctions on ICC officials including Khan.
The threats to the ICC are not just coming from its enemies – many of them are self-inflicted. Two women, one a staffer at the ICC, have accused Khan of sexual abuse. The executive committee of the ICC’s governing body last month voted to suspend Khan, who denies any wrongdoing, after concluding that he had committed serious misconduct. The court’s 125 member states will, this Friday, vote on whether to remove him from office.
Staff in The Hague say the ICC has become an increasingly high-pressure place to work, with one former senior official describing the atmosphere as toxic.
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There are also concerns from international law and human rights experts over its record. It has botched many of its big cases, including against Uhuru Kenyatta and William Ruto, two opposing politicians who were both accused of fomenting Kenya’s post-election violence in 2007-8. As the ICC dithered, witnesses disappeared and the two men joined forces to run for election. Their election as president and vice-president in 2012 eventually led to the case collapsing.
The question now is what the “rest of the west” will do in response to Trump’s attacks. The court’s biggest donors need to stay strong and not give in to intimidation. It will be an early test for Ed Miliband, who said upon his appointment as foreign secretary on Monday that “we face a time of greater instability and threat to international law … than at any time since the second world war”.
The ICC’s imperfections undoubtedly make it a harder institution to defend. Those weaknesses can be magnified and targeted, making the court’s natural defenders reluctant to man the barricades.
Yet that is exactly what needs to happen. Even when it is badly run or cases are poorly constructed, the ICC’s very existence can have an impact. Netanyahu and Putin will for ever be referred to as men indicted for war crimes. Their worlds have shrunk thanks to the threat of arrest. The Philippines’ former president, Rodrigo Duterte, is on trial, accused of crimes against humanity during his “war on drugs”.
This is why Trump is so determined to shut it down, argues Luis Moreno Ocampo, the court’s first chief prosecutor. “Trump knows he could be a target after he leaves office,” he told me. “The ICC is a huge obstacle for him.”
And that’s another reason why it’s so important the ICC is saved. Actions need to have consequences. After the midterm elections in the US, a Democrat-led Congress is likely to hold hearings and open investigations into a whole host of Trump’s actions, from his murky dealings to his use of paramilitaries against his own citizens.
But the rest of the world needs to hold him accountable too – whether it’s for bombing boats in the Caribbean, striking a school in Iran or indeed any fresh horror he commits in the next two and a half years. Just as Putin and Netanyahu will live out the rest of their days knowing the threat of arrest could lie just around the corner, Trump fears this might be his fate. He cannot be allowed to escape it.
