UN rapporteur urges EU to use legal powers to protect ICC from Trump sanctions
The UN's top expert on judicial independence has called on the European Union to act to protect the International Criminal Court (ICC) from US sanctions.
In an interview with Middle East Eye, the UN special rapporteur on the independence of judges and lawyers Meg Satterthwaite condemned President Donald Trump’s executive order of 6 February, which sanctioned the ICC’s chief prosecutor Karim Khan over his investigation into top Israeli officials.
By issuing the sanctions, the US is "placing itself on the side of impunity when what we need to do is ensure accountability for the worst crimes," she explained.
The order came after a visit to the White House by Israeli Prime Minister Benjamin Netanyahu, who is wanted by the ICC over alleged war crimes and crimes against humanity committed in Gaza since October 2023.
Netanyahu and his then defence minister, Yoav Gallant, were issued arrest warrants in November last year, alongside three Hamas leaders, who have since been killed by Israel.
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The order placed financial and visa sanctions on Khan as well as other non-US individuals and their family members who assist in ICC investigations of US citizens or allies.
"Sanctioning the head prosecutor is a massive not only statement, but effort to intrude in the work of the court itself under the Rome Statute," Satterthwaite said.
Satterthwaite warned that sanctioning Khan is “not the end of the story”.
“The authorisation itself is very broad,” Satterthwaite, who is a professor of clinical law at New York University, told MEE.
“So what remains an open question is will President Trump authorise sanctions of other people within the court? Will he even potentially sanction the court itself?”
In his order, Trump said the ICC has “engaged in illegitimate and baseless actions targeting America and our close ally Israel".
The US and Israel are not state parties to the Rome Statute, the treaty that established the ICC in The Hague in 2002. Both states have opposed the court’s investigation into the situation in Palestine, launched by the ICC’s previous prosecutor Fatou Bensouda in 2021.
The court’s jurisdiction was based on the accession of the State of Palestine to the Rome Statute in 2015. Accordingly, the court can investigate Israeli individuals for crimes committed in occupied Palestine, which includes the Gaza Strip, the West Bank and East Jerusalem.
But Israel and the US have challenged the court’s jurisdiction, saying they do not recognise Palestine as a state, and that Israel is best placed to investigate itself under the principle of complementarity as set out in Article 17 of the Rome Statute.
Trump’s order reiterated this view and described the arrest warrants as an abuse of power, an allegation refuted by the ICC.
Sattherthwaite said the court has jurisdiction on the situation in Palestine, regardless of who committed the alleged crimes, and that Trump's argument is invalid.
Steps to protect the court
Sattrthwaite added that all 125 member states of the Rome Statute should take steps to protect the court and its personnel.
This includes resorting to the Blocking Statute, a European Union regulation that aims to protect companies and individuals from the EU from the effects of extra-territorial sanctions imposed by third countries.
The statute primarily focuses on shielding EU operators, such as the Netherlands-based ICC, from certain US sanctions considered to have extraterritorial reach, like those against Cuba and Iran.
"I think the second step should be, in fact, to activate the Blocking Statute of the EU," said Satterthwaite.
"That would be a very effective and appropriate next step."
According to Satterthwaite, the ICC prosecutor may be justified to bring charges against Trump and other officials behind the sanctions, under Article 70 of the Rome Statute.
The article prohibits offences against the administration of justice, including: "Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; and retaliating against an official of the Court on account of duties performed by that or another official."
The law professor added: "The actions taken to sanction the court, if that happens, or to sanction court officials such as has already happened with the prosecutor, would appear to fulfil the elements of Article 70 of the Rome Statute.
"I think it's something that needs to be very carefully addressed and reviewed legally."
No immunity for Netanyahu
Following the sanctions, 79 states signed a statement declaring their support for the court in the face of sanctions.
However, several states, including France, Italy, and Hungary, have signalled that they would not implement the ICC's arrest warrant for Netanyahu, arguing that he enjoys immunity as a head of government.
Last week, Germany's new chancellor Friedrich Merz, the leader of the Christian Democratic Union (CDU), said he had invited Netanyahu to visit Berlin, in defiance of the ICC's arrest warrant.
"I think it is a completely absurd idea that an Israeli prime minister cannot visit the Federal Republic of Germany,” Merz said.
Satterthwaite said all ICC member states, which include Germany, have a legal obligation to implement the warrant. She also rejected the immunity argument, saying it's a "misunderstanding".
"It is, in fact, quite a clear obligation for member states of the ICC to effectuate arrest warrants, no matter what the position is of the individual sought," she said. "So it's actually not not an appropriate way to view international law.
"One of the main purposes of the ICC was to ensure that no one would be above the law, and so even the highest level officials have the obligation to submit themselves to such an arrest warrant," she added.
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