Exterior view of the International Criminal Court, or ICC, in The Hague, Netherlands, on April 30, 2024. (Peter Dejong/AP)
THE HAGUE, Netherlands — The president of the International Criminal Court lashed out at the United States and Russia for interfering with its investigations, calling attacks on the court “appalling.”
“The court is being threatened with draconian economic sanctions by another permanent member of the Security Council as if it was a terrorist organization,” Judge Tomoko Akane said in her address to the institution’s annual meeting, which opened on Monday.
Akane was referring to remarks made by U.S. Sen. Lindsey Graham, whose Republican party will control both branches of Congress in January, and who called the court a “dangerous joke” and urged Congress to sanction its prosecutor. “To any ally, Canada, Britain, Germany, France, if you try to help the ICC, we’re going to sanction you,” Graham said on Fox News.
Graham was angered by an announcement last month that judges had granted a request from the court’s chief prosecutor Karim Khan to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu, his former defense minister and Hamas’ military chief for crimes against humanity in connection with the nearly 14-month war in Gaza.
This marks the first time the global court of justice calls out a sitting leader of a major Western ally.
ICC faces challenges in implementing arrest warrants
Graham’s threat isn’t seen as just empty words. President-elect Donald Trump sanctioned the court’s previous prosecutor, Fatou Bensouda, with a travel ban and asset freeze for investigating American troops and intelligence officials in Afghanistan.
Akane on Monday also had harsh words for Russia. “Several elected officials are being subjected to arrest warrants from a permanent member of the Security Council,” she said. Moscow issued warrants for Khan and others in response to the investigation into Putin.
The Assembly of States Parties, which represents the ICC’s 124 member countries, will convene its 23rd conference to elect committee members and approve the court’s budget against a backdrop of unfavorable headlines.
The ICC was established in 2002 as the world’s permanent court of last resort to prosecute individuals responsible for the most heinous atrocities — war crimes, crimes against humanity, genocide and the crime of aggression. The court only becomes involved when nations are unable or unwilling to prosecute those crimes on their territory. To date, 124 countries have signed on to the Rome Statute, which created the institution. Those who have not include Israel, Russia and China.
The ICC has no police force and relies on member states to execute arrest warrants.
The decision to warrant issues for Netanyahu and Israel’s ex-Defense Minister Yoav Gallant has been denounced by critics of the court and given only milquetoast approval by many of its supporters, a stark contrast to the robust backing of an arrest warrant for Russian President Vladimir Putin last year over war crimes in Ukraine.
U.S. President Joe Biden called the warrants for Netanyahu and the former defense minister “outrageous” and vowed to stand with Israel. A year ago, Biden called the warrant for Putin “justified” and said the Russian president had committed war crimes. The U.S. is not an ICC member country.
France said it would “respect its obligations” but would need to consider Netanyahu’s possible immunities. When the warrant for Putin was announced, France said it would “lend its support to the essential work” of the court.
Another member country, Austria, begrudgingly acknowledged it would arrest Netanyahu but called the warrants “utterly incomprehensible.” Italy called them “wrong” but said it would be obliged to arrest him. Germany said it would study the decision. Member Hungary has said it would stand with Israel instead of the court.
Global security expert Janina Dill worried that such responses could undermine global justice efforts. “It really has the potential to damage not just the court, but international law,” she told The Associated Press.
Milena Sterio, an expert in international law at Cleveland State University, told the AP that sanctions against the court could affect a number of people who contribute to the court’s work, such as international human rights lawyer Amal Clooney. Clooney advised the current prosecutor on his request for the warrants for Netanyahu and others.
“Sanctions are a huge burden,” Sterio said.
Accusations against Khan
Also hanging heavy over the meeting in The Hague are the internal pressures that Khan faces. In October, the AP reported the 54-year-old British lawyer is facing allegations he tried to coerce a female aide into a sexual relationship and groped her.
Two co-workers in whom the woman confided reported the alleged misconduct in May to the court’s independent watchdog, which says it interviewed the woman and ended its inquiry after five days when she opted against filing a formal complaint. Khan was never questioned. He has denied the claims.
The Assembly of States Parties has announced it will launch an external probe into the allegations. It’s not clear if the investigation will be addressed during the meeting.
Khan took the floor after Akane. He didn’t address the accusations against him or the threats against the court directly, other than to say the institution was facing “unprecedented challenges.”
Instead he highlighted his office’s recent request for an arrest warrant against the head of Myanmar’s military government and said he planned to request warrants related to Afghanistan and Sudan in the coming months.
Late last week, six countries including France, Luxembourg and Mexico asked Khan’s office to look into possible crimes in Afghanistan since the Taliban took control in 2021. While Khan isn’t obligated to open an investigation in response to such a request, historically court prosecutors have done so.
The court, which has long faced accusations of ineffectiveness, will have no trials pending after two conclude in December. While it has issued a number of arrest warrants in recent months, many high-profile suspects remain at large.
Member states don’t always act. Mongolia refused to arrest Putin when he visited in September. Sudan’s former President Omar al-Bashir is wanted by the ICC over accusations related to the conflict in Darfur, but his country has refused to hand him over. Last week, Khan requested a warrant for the head of Myanmar’s military regime, Senior Gen. Min Aung Hlaing, for attacks against the country’s Rohingya Muslim minority. Judges have yet to decide on that request.
“It becomes very difficult to justify the court’s existence,” Sterio said.
