Why does Washington want to "dismantle" the court in The Hague?

There are two major international courts in The Hague, which are often used interchangeably. On one side is the United Nations International Court of Justice (ICJ), which settles disputes between states and is housed in the historic Peace Palace. On the other side is the International Criminal Court (ICC), which has been bringing individuals responsible for war crimes to justice since 2002 and operates in a much more modern building of glass and concrete.

It does not represent all 193 UN members, but only 125 states that have joined the court and recognized its jurisdiction - among the non-member countries are the USA, Russia and China, as well as some states from Asia and North Africa.

When US Secretary of State Marco Rubio recently threatened to dismantle the court “brick by brick,” it was clear that he was referring to the International Criminal Court. His department outlined in a statement the instruments the US is considering in its campaign against the court. Among other things, the US could impose travel bans on ICC employees or toughen sanctions against the court and related organizations. It even mentions increased oversight of states “that refuse to reject the ICC’s bogus authority while simultaneously using US assistance.”

The US has repeatedly pressured the ICC in the past, but the new approach has attracted the attention of international law experts around the world. writes Deutsche Welle.

Washington steps up pressure on The Hague

"The US and Marco Rubio have now essentially made public what has been going on for over a year - namely, that the US is using diplomatic pressure and various means to influence other states to change their positions, and in part their voting patterns, when it comes to the ICC," said Andreas Schiller, deputy head of the International Crimes and Legal Accountability Program at the European Center for Constitutional and Human Rights (ECCHR) in Berlin.

"The fact that this is now being declared a campaign further shows that this is a strategically thought-out approach, that the scope is broader, and that other states that are not members of the ICC are also trying to get involved to apply pressure," Schiller told DW.

The United States is not a member of the International Criminal Court, so crimes committed on its territory cannot be prosecuted at The Hague. However, the ICC has jurisdiction when someone is charged with crimes committed on the territory of a member state. For example, arrest warrants have been issued on this basis for Russian President Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu.

The existence of the ICC can be explained by lessons from history. After World War II, the Nuremberg trials against some of the Nazi leadership represented the birth of international criminal law. When war crimes tribunals were established in the 1990s, following the war in the former Yugoslavia and the genocide in Rwanda, there was growing demand for a permanent institution.

According to Kai Ambos, an international law expert at the University of Göttingen, it is a "fundamental question of accountability," whether it is Ukraine, Iran or Gaza. "It cannot be acceptable that such serious crimes are committed, regardless of the conflict, and that the main perpetrators, above all heads of state and other leading figures, go unpunished. Nothing is simply happening. That is unacceptable for the victims, but also for all of us," Ambos told DW.

Should American citizens be put in the dock?

Marco Rubio stated in a short video address that the court threatens the entire US legal system: "Border Protection officers who remove violent criminals from our country. US Marines who risk their lives defending our country. (…) If we remain passive, they would all be left at the mercy of foreign judges thousands of miles away," said the US Secretary of State.

There are currently no proceedings against US citizens before the International Criminal Court. The activities of ICE border officers mainly take place within the US, where the ICC does not have jurisdiction anyway. The situation is different when it comes to targeted killings of alleged drug traffickers in the Caribbean. Former ICC Chief Prosecutor Luis Moreno Ocampo assessed in November that this could be a possible crime against humanity.

How can the court resist pressure?

Kai Ambos now fears that the so-called “chilling effect” could be further intensified, meaning that, for example, prosecutors at the International Criminal Court could be more lenient towards US suspects. “We also have a problem of over-compliance, so companies outside the US are saying: we are no longer cooperating with this institution, because it could jeopardize our business in America.”

Last year, the US State Department imposed a series of sanctions against the ICC and individual judges. In response, the court further reduced its dependence on the US, for example by replacing Microsoft's office applications with a German open-source product.

The ECCHR expert believes that member states have many smaller options to support the court. “If middle powers and smaller states unite against the US and become a pillar of international institutions and provide resistance, that is the most important thing.”

The European Union immediately supported the ICC after Rubio's threats. German Foreign Minister Johann Wadeful also expressed support for the court, saying that the court makes the world "safer and more just."

Interestingly, in 2022, in light of Russia’s all-out invasion of Ukraine, the US Senate took a similar stance. The resolution described the ICC as “an international tribunal that seeks to uphold the rule of law” and welcomed investigations into Russia. One of the sponsors of the text, proposed by the recently deceased Republican Senator Lindsey Graham, was the current US Secretary of State Marco Rubio.