The new US sanctions on the International Criminal Court (ICC) took effect on October 9 — the same day South African jurist Navi Pillay was awarded the Nobel Peace Prize for her contribution to international law.

The motivations behind these two diametrically opposed moves speak to the fragility of international law. They also highlight that ICC member states — including Australia, Japan, EU members and Canada — may now have to choose between Donald Trump's program to dismantle the court "brick by brick" and their own commitments to international justice.

A Long Enmity

The United States has never been a strong supporter of the ICC. Although it took part in the negotiations that produced the court's founding treaty, the Rome Statute, in 1998, it did so partly to ensure that the crime of aggression remained outside the court's remit for decades.

Former President Bill Clinton signed the Rome Statute in 1998, but it was never ratified. George W. Bush removed possibility in 2002.

Congress went further later the same year, passing the American Servicemembers' Protection Act (ASPA), known as "the Hague invasion act," which was designed to ensure that no US citizen could fall under the ICC's jurisdiction. Washington has since concluded numerous bilateral agreements — including with ICC member states — to make sure US nationals are not handed over to The Hague.

Afghanistan accepted the ICC's jurisdiction in 2003. In 2017, prosecutor Fatou Bensouda called for a full investigation that included allegations of CIA torture in "black sites" in Poland, Romania and Lithuania. The appeals chamber confirmed the investigation in March 2020. In response, the US imposed "smart sanctions" on two ICC officials, including Bensouda, in September 2020. It has also targeted the UN's expert on the Palestinian territories, Francesca Albanese, barring her from all financial dealings with, and travel to, the United States.

In April 2021, with Joe Biden in office, those sanctions were revoked. They were reimposed just 17 days into Trump's second term, specifically targeting the new prosecutor, Karim Khan, who had issued arrest warrants in November 2024 against Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant over their handling of the Gaza conflict. The allegations include war crimes and crimes against humanity, but not genocide.

Khan was removed from office earlier this year over allegations of sexual abuse, although there has also been some suggestion that his support for the Palestinian investigation played a part. The ICC has not publicly issued any further warrants against Israeli officials, but rumors circulate that Finance Minister Bezalel Smotrich is the subject of a sealed warrant. On hearing the rumor in May 2026, Smotrich ordered the forcible evacuation of the Bedouin village of Khan Al-Ahmar in the occupied West Bank.

Trump on the Attack

Later in 2025, Trump went on to sanction numerous ICC judges, three Palestinian civil society organisations and the UN Special Rapporteur on the occupied Palestinian territory, Francesca Albanese. They were targeted specifically for their work on the Palestine case, which has drawn unprecedented attention to the Court within a wider debate over whether Israeli conduct amounts to genocide.

While the International Court of Justice (ICJ) found in January 2024 that there was a plausible case of genocide in Gaza, its full determination in the proceedings between South Africa and Israel is not expected to be delivered until after Trump's second term in office.

To date, the most authoritative merits-based finding of genocide by Israel comes from the UN Commission of Inquiry's September 2025 report. This was the last report delivered by Navi Pillay as the Commission's chair, and it sets out in forensic detail how Israeli conduct fulfils four elements of genocide under the 1948 Convention.

The Latest Sanctions

It appears that growing consensus about the extent of Israeli crimes, together with the (small) chance of ICC action on the Afghanistan file, was enough to precipitate Trump's latest round of sanctions.

The new measures differ significantly from the earlier "smart sanctions," which had targeted only Palestine-related ICC officials and human rights organisations. The October 9 package targets the ICC as a whole, freezing all property holdings and blocking services and transactions with the Hague-based institution. Given US dollar hegemony, transfers of funds, salaries, cloud services, insurance and travel are all significantly threatened.

It remains unclear whether the measures will criminalise US individuals and entities that engage with the court on a pro bono basis, but they block any formal relationship. Uncertainty tends to produce a chilling effect, and many are likely to avoid assisting the court with its investigations for fear of being sanctioned themselves. If the full force of the measures is implemented, the court will struggle to carry out many of its functions, especially without strong European backing.

The ban is not all stick. It contains a carrot: a 180-day grace period allowing certain activities, including IT services and ICC pension funds, to continue. Over that period, the Trump administration expects "meaningful progress," or the softening measures will lapse. The administration appears to be calling on its allies among the court's member states to push for a radical shift within the ICC, especially regarding the Afghanistan and Palestine investigations. The immediate question is whether the court can preserve those functions during the grace period and whether member states convert their stated support into practical backing.

The court has already responded by stating firmly that its mandate is not political and that it will "not be deterred" from "safeguarding the international order upon the rule of law." The Netherlands, Canada, France, Germany, Italy, Denmark, the UK and Japan have also issued a statement reaffirming their continued and unwavering support for the independence, impartiality and integrity of the ICC. As things stand, however, this will go nowhere near far enough either to protect the court or to placate a Trump administration bent on destroying it.

Two alternatives must be considered.

First, some powerful states do have sticks they can use against the US. The European Union, for example, could resort to the "nuclear option" and impose its own blocking statute, requiring all individuals and entities under EU jurisdiction not to comply with the US sanctions. The ramifications would be significant, as parties could find themselves facing opposing obligations — and the US could respond with a raft of countermeasures. While the EU did not mention this possibility in its statement affirming support for the ICC on October 10, the new US moves will embolden Spain and the Netherlands in their push to see it implemented.

The softer option is to turn to the example of Navi Pillay. In receiving the Nobel — instead of Trump himself — she embodied the values and institutions Trump is seeking to destroy. Her stellar career — in the struggle against apartheid in South Africa, in developing the field of international criminal justice, as UN High Commissioner for Human Rights and, finally, in bravely issuing her finding on Israel's genocide — proves that the international legal order is indeed under attack, but that it still has some powerful and persuasive advocates.

Michelle Burgis-Kasthala, Professor of International Law, La Trobe University

This article is republished from The Conversation under a Creative Commons license.