US-led onslaught on ICC over Israel has Europe fearing court's demise

Behind-the-scenes panic among European officials has followed Hungary's announcement that it would withdraw from the International Criminal Court, amid growing fears the US government is determined to engineer its demise.

There have been closed-door consultations between European countries about how to respond to the increasing pressure on the ICC, The National understands.

Of particular concern are further US sanctions that are scheduled to be issued next week on The Hague-based intergovernmental organisation and international tribunal. EU member states – including Germany, France and Italy – are among the ICC's top financial backers.

A new round of sanctions would also further weaken the ICC, which was built on the idea that states can co-operate to bring justice to the victims of crimes including genocide, crimes against humanity, war crimes and waging a war of aggression.

Close co-ordination

In its campaign against the ICC, the US has been co-ordinating closely with Hungary and Israel. A statement issued by the office of Israel's Prime Minister Benjamin Netanyahu on Thursday, after he arrived in Budapest at the invitation of Prime Minister Viktor Orban, said the two leaders had spoken on the phone with US President Donald Trump.

“At the centre of their conversation was Hungary's decision to withdraw from the ICC,” Mr Netanyahu's office said, without elaborating. The US and Israel are not members of the ICC and have historically opposed it.

Mr Orban's invitation to Mr Netanyahu, extended immediately after the ICC issued an arrest warrant against the Israeli leader for alleged war crimes in Gaza, had been intended as a snub to the ICC. Thanking Mr Orban during a joint press conference on Thursday in Budapest, Mr Netanyahu said: “You are the first, I dare say, I don't think the last, that walks out of this corruption and this rottenness. I think it'll be deeply appreciated not only in Israel but also in many, many countries around the world. ”

In the past, only the Philippines and Burundi have withdrawn, as Hungary intends. There are no consequences to this decision, aside from moral condemnation from members.

There are fears that the ICC may not withstand the pressure and simply stop functioning if the US issues a new round of sanctions against it.

On February 6, when Mr Trump placed sanctions on ICC president Karim Khan for “baseless actions targeting” the US and its “close ally Israel”, the executive order said that Treasury Secretary Scott Bessent, in consultation with State Secretary Marco Rubio, would submit “within 60 days” to Mr Trump “a report on additional persons” to face sanctions.

Mr Trump had under his previous mandate in 2020 issued sanctions against two ICC judges for investigating alleged US war crimes in Afghanistan, but they were lifted the following year by his successor Joe Biden. Should Mr Trump issue additional sanctions against further ICC judges – or even the institution itself – companies and states from all over the world may hesitate to engage with it. US sanctions have the particularity of being extraterritorial.

'Blocking statute'

There is little the EU can do about this, though human rights activists have pointed at the EU Commission's option of implementing a so-called “blocking statute” to protect European companies from US sanctions.

It was used in 2018 to protect European companies operating in Iran, after Mr Trump withdrew the US from the 2015 Joint Comprehensive Plan of Action. This agreement between Iran and world powers had placed limits on Tehran's nuclear programme in exchange for sanctions relief.

“At a political level, [the blocking statute] also reflects the EU’s disapproval of sanctions with extraterritorial reach imposed by other countries that the EU considers to be abusive or unreasonable,” Amnesty International wrote in 2020, following Mr Trump's first sanctions against the ICC.

In a speech to the EU Parliament, EU's foreign affairs chief Kaja Kallas said she had met Mr Khan last month to reiterate the bloc's support to the court. “We are all aware of the growing urgency of supporting the court, both financially and diplomatically, and we are exploring available tools and possible measures that could be put in place to protect the court and its personnel, and mitigate the risks,” Ms Kallas said on Tuesday.

Yet the EU Commission – the bloc's executive arm – needs political support from EU countries to put forward decisions such as a blocking statute. It remains unclear how strong this support would be. EU countries that support the ICC, such as Italy, have historically struggled between the political realities of arresting a wanted person and following the court's decision.

This was evident in Italy's refusal to arrest Libyan police chief Osama Najim in January. In an echo of her Hungarian and Israeli counterparts, Italian Prime Minister Giorgia Meloni accused the ICC of political bias. Italy has strong historic links to Libya, which is an important partner in fighting illegal migration.

There is little evidence to back such accusations, the court's defenders say. A panel of experts in international law were consulted before Mr Khan in May issued arrest warrants against Mr Netanyahu, his former defence minister Yoav Gallant and three senior Hamas officials. The panel included high-profile human rights lawyer Amal Clooney.

A number of other countries have had to tread a fine line between continued support for the ICC and disagreeing with its legal interpretation of the Rome Statute, which founded the ICC.

France has argued that Mr Netanyahu is protected by his immunity because Israel is not an ICC member – and thus would not arrest him. Discussing Hungary's refusal to arrest Mr Netanyahu, Belgian Prime Minister Bart De Wever on Friday said: “To be perfectly honest, I do not think we would do it either.”

'Unique moment'

Though rejected by the ICC, France's position is shared by a number of legal experts, including Mathias Holvoet, a lecturer in international criminal law at the University of Amsterdam. “It's very contentious to say that a state that has not ratified the Rome Statute cannot rely on immunities,” Mr Holvoet told The National.

Technically, it is possible to adhere to this legal interpretation while also supporting the ICC. Germany's incoming Chancellor Friedrich Merz has said he would find ways to invite Mr Netanyahu, while Poland's Prime Minister Donald Tusk had floated the idea of inviting him for the 80th anniversary of the liberation of Auschwitz in January.

Yet should a judge in Europe try to arrest the Israeli leader, the backlash from the US would likely be huge, Mr Holvoet said. Adopted in 2002, the American Service-Members' Protection Act – known informally as The Hague Invasion Act – gives the US the possibility of responding by military means should the ICC acts against the US or its allies.

“The political pressure would be enormous,” Mr Holvoet said. The arrest warrant against Mr Netanyahu is a “unique moment”, he said: “It's the first time that an ally of the US has been indicted by the ICC.”

EU support for the ICC is likely to remain strong. This should ensure the institution's survival, Mr Holvoet added.

“Despite Hungary's withdrawal, the majority of the EU is still behind the court,” he said.