Contempt of court

Last November, the chief prosecutor of the International Criminal Court issued arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and the former Israeli defense minister Yoav Gallant for alleged crimes perpetrated against Palestinians in the Gaza Strip. Reactions in Washington were not muted. The then-U.S. president, Joe Biden, called the ICC’s warrants “outrageous.” And this February, his successor, Donald Trump, sanctioned ICC prosecutor Karim Khan for “illegitimate and baseless actions targeting America and our close ally Israel.” 

In response, a group of 79 countries—including the United Kingdom, Germany, and France—signed a joint letter calling the ICC “a vital pillar of the international justice system” and promising it “unwavering” support. And yet many of these same countries have been ambivalent about whether they will actually enforce the ICC’s arrest warrants. For instance, the likely future German chancellor, Friedrich Merz, recently said that he’d find “ways and means” for Netanyahu to visit Germany.  

The present clash between the United States government and the International Criminal Court traces the fault lines of international law itself. The U.S. claims that the ICC is infringing on the sovereignty of states, which is similar to the charge leveled by European critics of the European Court of Human Rights. Others believe it’s the basis of a peaceful and just international order. And others still think international law is selectively enforced against the West’s geopolitical enemies—“Africa and … thugs like Putin,” as Karim Khan told CNN one senior American leader put it to him. So which is it?

Yuan Yi Zhu is an assistant professor of international relations and international law at Leiden University and a research associate at the University of British Columbia’s Centre for Constitutional Law and Legal Studies. Dramatic though the United States’s sanctions against the International Criminal Court may seem, Zhu says, they’re not really surprising: Washington has long opposed international courts having jurisdiction over Americans and certain American allies. And the current contretemps between Washington and the Hague illustrate that the enforcement of international law is largely based on the consent of states.

But once they’ve signed international treaties, international courts tend to interpret their powers expansively, which has led to a series of standoffs between states and international courts. In the long run, Zhu says, that threatens to undermine not just democratic governance but international law itself, as more and more states begin to consider leaving international courts …

Gustav Jönsson: How do you understand the terms of the conflict between the U.S. administration and other Western powers over the ICC’s role in the world?