US sanctions two ICC judges for rejecting Israel's appeal against Gaza investigation
The Trump administration on Thursday imposed sanctions on two International Criminal Court (ICC) judges for their recent decision to reject an Israeli appeal against the Gaza war crimes investigation.
The two judges, Gocha Lordkipanidze of Georgia and Erdenebalsuren Damdin of Mongolia, are members of the appeals chamber that on Monday ruled by a majority to dismiss Israel’s arguments that the investigation into crimes in Gaza after 7 October 2023 was invalid.
The appeals chamber decision has been widely viewed as a significant development in the Palestine investigation, which led to arrest warrants for Israel's Prime Minister Benjamin Netanyahu and his former Defence Minister Yoav Gallant in November last year.
Had Israel succeeded in its appeal, the arrest warrants would have been invalid.
Israel has filed numerous appeals to try to invalidate the warrants, including an attempt to disqualify the court's chief prosecutor, Karim Khan, for alleged lack of impartiality and a challenge to the court's jurisdiction in Palestine.
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Lordkipanidze and Damdin are among eight judges sanctioned by the Trump administration since February in connection with the Gaza and Afghanistan war crimes investigations. The court’s chief prosecutor and his two deputy prosecutors have also been the subject of sanctions.
“These individuals have directly engaged in efforts by the ICC to investigate, arrest, detain, or prosecute Israeli nationals, without Israel’s consent, including voting with the majority in favor of the ICC’s ruling against Israel’s appeal on December 15,” US Secretary of State Marco Rubio said in a statement.
“The ICC has continued to engage in politicized actions targeting Israel, which set a dangerous precedent for all nations. We will not tolerate ICC abuses of power that violate the sovereignty of the United States and Israel and wrongly subject US and Israeli persons to the ICC’s jurisdiction,” the statement added.
Rubio reiterated the US’s rejection of the court’s jurisdiction over US and Israeli nationals.
“We will continue to respond with significant and tangible consequences to the ICC’s lawfare and overreach,” Rubio added.
ICC's Countermeasures
The sanctions since February have upended the daily lives of the targeted ICC officials, banned them from travel to the US, and effectively cut them off from much of the global financial system, including within Europe.
At the ICC's annual conference earlier this month, the court's president confirmed the court is implementing countermeasures to protect the court from the sanctions, but that they would remain "confidential" to ensure their effectiveness.
All members of the appeals chamber that issued Monday's decision are now sanctioned except judge Tomoko Akane of Japan, the president of the ICC and who also voted in favour of the decision.
Sanctioned judges have told MEE that they expect the European Union to take action to shield them from the extraterritorial impact of sanctions, but that the bloc has yet to take concrete measures to protect them.
One of the impacted officials is Peruvian judge Luz del Carmen Ibanez Carranza, who was sanctioned in June for her role in authorising an investigation into crimes committed in Afghanistan since 2003.
She told MEE in The Hague this month that the sanctions have barred her from using her credit card or any banking system that uses US dollars. She has also been unable to use Western Union to send money to her home country or to use applications like Uber.
Her daughter has been denied a visa to the US without an explanation, preventing her from travelling to the US for work as an international lawyer.
"But none of these [measures] have deterred us as judges, because those sanctions are designed to attack our independence as judges, and we are not giving up our independence," she said. "As judges, we are more united than ever, and we are carrying out our daily functions with the best of our abilities."
Israel’s appeal rejected
The ICC’s investigation into war crimes committed in occupied Palestine was initiated in 2021, based on a referral by the state of Palestine in 2018.
But since November 2023, seven other referrals have been filed by South Africa, Bangladesh, Comoros, Bolivia, Djibouti, Chile, and Mexico.
In its appeal, Israel argued that the prosecutor should have notified it of a new investigation after the new referrals by the seven states, in line with Article 18 (1) of the Rome Statute, which requires the prosecutor to formally notify any state concerned when an investigation is opened.
This notice explains what the investigation will cover and gives the state a chance to argue that it is already investigating the same matters itself, a principle designed to stop duplication.
The prosecutor did this in 2021, but Israel did not respond to the notice. Instead, it argued that the court had no legal authority over the situation at all.
After the prosecutor later applied for, and obtained, arrest warrants for Netanyahu and Gallant, Israel changed its position.
It claimed that events after the 7 October 2023 Hamas-led attacks on Israel amounted to a completely new situation, meaning the court should have issued a fresh notification before moving ahead.
The ICC’s appeals judges have rejected that argument. They ruled that the investigation into post-7 October 2023 events is covered by the original 2021 notice, so no new notification was required.
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