The Day Washington Sanctioned a Court

The United States has placed the International Criminal Court itself on its sanctions list. The decision tests whether 125 states will defend the institution they created. It also forces a harder question: does the court deserve defending?

By Silas Mwaudasheni Nande

A court on a blacklist

On 9 October 2026, the United States did something without precedent in the history of international justice. It designated the International Criminal Court (ICC) as a sanctioned entity. The Office of Foreign Assets Control, an arm of the United States Treasury, added the court to its list of Specially Designated Nationals. The entry lists the address of the court in The Hague and records 1 July 2002 as its date of establishment.

Secretary of State Marco Rubio announced the measure in a video statement. He called the institution a “rogue court”. He said Washington would ban transactions with it, cut off its resources and cripple its ability to operate. He then issued an ultimatum: “Either the ICC will end its threats, or we will end the ICC.”

The timing carried its own irony. Only hours earlier, the Norwegian Nobel Committee had awarded the Nobel Peace Prize to Navanethem Pillay. She is a South African jurist and a former judge of the same court. One part of the world honoured a judge of the ICC. The most powerful state in the world moved to starve the institution she once served.

The court replied the same day. It described the sanctions as an attempt to obstruct the course of justice. It called them an assault on the rule of law and on the principle that no one stands above the law. Its President, Judge Tomoko Akane of Japan, said the court would continue to discharge its mandate with independence and impartiality.

This article examines what the designation means in practice and whether it can end the court. It traces the origins of the court and the pattern of signatures, ratifications and withdrawals. It considers the place of Africa, the sources of funding and the consequences of disobedience by member states. It closes with a critique. The central question is plain. Is the ICC a global public good, or a selective instrument used against weaker states?

The road to 9 October

The designation did not arrive without warning. On 6 February 2025, President Donald Trump signed Executive Order 14203, titled “Imposing Sanctions on the International Criminal Court”. The order allowed Washington to sanction persons connected with ICC efforts against nationals of the United States or of allies such as Israel.

Individual designations followed in waves through 2025 and 2026. On 13 July 2026, Rubio announced a campaign to “dismantle” the court. Senior American diplomats telephoned governments and urged them to withdraw from the Rome Statute and to stop funding the court. On 18 August 2026, Washington sanctioned Judge Akane herself, together with Abdoulaye Seye, a Senegalese senior trial lawyer in the Office of the Prosecutor.

By that point, according to the court, nine of its eighteen judges were under American sanctions. So were both deputy prosecutors, a former prosecutor and one staff member. In September 2026, President Trump used his address to the United Nations General Assembly to urge every member of the court to resign at once. The October designation completed a steady progression from individuals to the institution itself.

The formal grievance concerns jurisdiction. The United States signed the Rome Statute in 2000 but never ratified it. Washington argues that a treaty court cannot try the nationals of a state that never consented to its authority. The immediate triggers, however, are two investigations. The first concerns Afghanistan, where the conduct of American personnel once fell within the scope of inquiry. The second concerns Palestine. In November 2024, judges of the court issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former defence minister, Yoav Gallant.

What the designation does in practice

The legal effect is severe but not instant. The designation blocks any property of the court held in the United States or controlled by American persons. It generally bars American citizens, residents and companies from doing business with the court. It also exposes foreign persons who provide material support to designated targets to possible sanctions of their own.

The Treasury issued four general licences on the same day. General Licence 13 authorises transactions needed to maintain or wind down operations involving the court until 7 April 2027. Its explanatory note expressly permits payments by States Parties to the court. It also covers salaries, health insurance, rent, utilities and routine commercial services. General Licences 14, 15 and 16 deal with telecommunications and enterprise software, pension payments and certain matters relating to detainees.

This structure reveals the strategy. The six month window is not mercy. It is leverage. Rubio said the measure should encourage American allies within the court to find solutions that end the perceived threat to American sovereignty. In plain terms, Washington has given European, Asian, African and Latin American States Parties half a year to reshape the court. If they fail, the court loses lawful access to the American financial and technological system.

The practical exposure is considerable. Modern institutions depend on American banks, payment systems, cloud services, email platforms and software licences. Sanctioned judges have already described the personal cost. Judge Kimberly Prost of Canada told a Dutch newspaper in 2026 that she lost access to all her American services, including credit cards, without warning. What has happened to individual judges can now happen to an institution with an approved staffing level of about one thousand posts.

Is this the end of the ICC?

The short answer is no, at least not in law. The longer answer is more troubling. The court does not exist by permission from Washington. It exists by treaty among 125 States Parties. No sanctions programme can repeal that treaty. The United States contributes nothing to the budget of the court, so it cannot withdraw money it never gave. The largest financial contributor is Japan, which supplies roughly fifteen per cent of assessed contributions. Germany and France follow.

The host state has also signalled resistance. An hour before the American announcement, Dutch Prime Minister Rob Jetten said the Netherlands and Europe would defend the court “stone by stone”. In September 2026, the foreign ministers of the Netherlands and Germany pledged to work together against attacks on the court. Belgium, Slovenia, members of the European Parliament and civil society groups have urged the European Union to extend its Blocking Statute to the ICC sanctions. That instrument would make it unlawful for companies and banks in the European Union to comply with the American measures.

Yet survival in law is not survival in practice. Three pressures now converge on the court at once.

The first pressure is financial isolation. European banks with large American exposure may decline to serve a sanctioned client, whatever European law says. Analysts have noted that even the Blocking Statute has limited reach against such commercial caution.

The second pressure is a wave of withdrawals. Burkina Faso, Mali and Niger deposited notifications of withdrawal in June 2026. Venezuela followed on 24 July 2026 and Chad on 27 July 2026. Naoero, formerly Nauru, notified its withdrawal on 23 September 2026, shortly after President Trump urged members to leave. Each withdrawal takes effect one year after notification. Chad stated publicly that its decision followed a telephone call from a senior American diplomat.

The third pressure is internal. On 24 July 2026, the Assembly of States Parties removed Prosecutor Karim Khan from office for serious misconduct and serious breach of duty. Eighty-two States Parties voted for removal. It was the first removal of an ICC prosecutor in the history of the court. Khan denies the allegations and has said he will challenge the decision. The two deputy prosecutors now lead the Office of the Prosecutor while states search for a successor.

The ICC is therefore unlikely to disappear. It may, however, be hollowed out. Whether it survives as a functioning court depends less on Washington than on its own members.

From Nuremberg to Rome: the origins of the court

The idea of a permanent international criminal court is older than the United Nations. The Treaty of Sèvres in 1920 contemplated a tribunal to try Ottoman leaders for crimes against Armenians. After the Second World War, the Nuremberg and Tokyo tribunals tried leaders of the defeated Axis powers. The International Law Commission prepared a draft statute for a permanent court in 1951 and a revised version in 1953. The Cold War then froze the project for decades.

The revival came from an unexpected quarter. In 1989, Trinidad and Tobago, under the leadership of A. N. R. Robinson, asked the General Assembly to reopen the question. Its initial concern was the inadequacy of national courts in dealing with transnational drug trafficking. The General Assembly asked the International Law Commission to resume its work. The Commission produced a draft statute in 1994.

Events then gave the project urgency. The Security Council created ad hoc tribunals for the former Yugoslavia in 1993 and for Rwanda in 1994. Those tribunals showed that international prosecution was possible. They also showed that ad hoc justice was slow, costly and dependent on the political will of the Security Council.

The decisive coalition was the Like Minded Group of states. Canada chaired it, and it grew to roughly sixty members. It included most European states, much of Latin America and many African states. Its members wanted an independent prosecutor and a court free from Security Council control. Human Rights Watch recorded at the time the high level of African participation in the final preparatory sessions. Hundreds of non-governmental organisations, gathered in the Coalition for an International Criminal Court, supported the effort.

The diplomatic conference met in Rome from 15 June to 17 July 1998. It adopted the Rome Statute by a non-recorded vote of 120 in favour, 7 against and 21 abstentions. The United States, China and Israel publicly confirmed that they voted against. Senegal became the first state in the world to ratify, on 2 February 1999. The sixtieth ratification, needed for entry into force, was reached on 11 April 2002 through joint deposits. The court opened its doors on 1 July 2002.

The history matters for the present debate. The ICC was not imposed by a single power. It was assembled by middle powers, small states and African and Latin American governments. They often acted against the wishes of the great powers.

Signatures, ratifications and retreats

The distinction between signing and ratifying a treaty is central to the controversy. A signature expresses political support and an intention to consider ratification. It does not bind a state to the treaty. Ratification, or accession, makes a state a full party with binding legal obligations.

As of October 2026, 125 states are parties to the Rome Statute. According to a notification lodged by Chad in July 2026, citing official court data from May 2026, 33 of them are African. Several large states remain outside. China and India are not members.

A second group signed but never ratified. The official treaty record lists, among others, Algeria, Angola, Cameroon, Egypt, Eritrea, Guinea Bissau, Morocco, Mozambique, São Tomé and Príncipe and Zimbabwe in Africa. Beyond Africa, it lists states such as Iran, Thailand, Kuwait, the United Arab Emirates, Syria, Jamaica and Haiti. These states expressed early sympathy but stopped short of accepting obligations.

A third group signed and then formally disowned the signature. The United States signed on 31 December 2000. On 6 May 2002, it informed the United Nations that it did not intend to become a party. It declared that its signature created no legal obligations. Israel signed on the same day in 2000 and sent a similar notice in August 2002. Sudan, which signed in September 2000, did the same in August 2008. The Russian Federation, which signed in September 2000, announced in November 2016 that it would not become a party.

A fourth group joined and then left. Burundi withdrew with effect from October 2017. The Philippines withdrew with effect from March 2019. Hungary began to withdraw in 2025 under Prime Minister Viktor Orbán. Its new parliament reversed that decision in May 2026, days before it would have taken effect. South Africa and the Gambia lodged withdrawals in 2016 and revoked them in 2017.

What does this pattern mean? It means that three of the five permanent members of the Security Council stand outside the court. South Africa made exactly this point in its 2016 withdrawal notice. It argued that questions about credibility would persist while three permanent members remained outside the Statute. The asymmetry is structural. The Security Council can refer situations in states that are not parties, as it did for Darfur in 2005 and Libya in 2011. Yet the permanent members can veto any referral affecting themselves or their allies.

It also means that withdrawal is not escape. Under Article 127 of the Statute, withdrawal takes effect one year after notification. It does not erase obligations arising while a state was a party. The Philippines illustrates the point. Former President Rodrigo Duterte was surrendered to the court in March 2025, six years after his country left. His trial for alleged crimes against humanity is scheduled to open on 30 November 2026.

Africa and the court: coerced or committed?

Africa occupies a paradoxical place in the story of the ICC. It supplied some of the earliest and most enthusiastic members. It also supplied most of the defendants.

The evidence does not support the claim that African states were forced to ratify. Senegal ratified before any other state. Ghana ratified in December 1999, Botswana and Mali in 2000, South Africa in November 2000, Nigeria in 2001 and Namibia in June 2002. These ratifications came in the shadow of the genocide in Rwanda. Many African governments saw a permanent court as a guarantee against a repetition.

The documented coercion in fact ran the other way. In August 2002, the United States enacted the American Service Members Protection Act. The law required Washington to cut military assistance to States Parties that refused to sign bilateral agreements shielding Americans from surrender to the court. South Africa was among more than thirty states that lost American military aid in 2003. A 2007 study in the African Human Rights Law Journal examined seven African states that accepted the loss of American aid rather than sign. Pressure, where it existed, was applied against the court, not in its favour.

African governments also brought most African cases to the court themselves. Uganda referred its own situation in January 2004. The Democratic Republic of the Congo followed in March 2004. The Central African Republic referred situations in December 2004 and May 2014. Mali followed in July 2012. Côte d’Ivoire accepted the jurisdiction of the court. The Security Council referred Darfur and Libya. African members of the Council voted for or abstained on those referrals. None voted against.

Yet the grievance is real, and it is measurable. In its July 2026 withdrawal notice, Chad cited official court figures. It noted that nine of the thirteen investigations opened by the court concerned African states. It noted that six of the seven detainees then held by the court faced charges arising from African situations. It also observed that the only preliminary examination then under way concerned Nigeria. Chad concluded that African national and regional courts had matured enough to try international crimes themselves. It pointed to the Extraordinary African Chambers, which tried former Chadian President Hissène Habré.

The honest conclusion is therefore nuanced. African states were not forced into the court. Many joined in good faith and later grew disillusioned. The disillusionment came from the concentration of cases on the continent and from the escape of powerful actors elsewhere. The new irony is that African critics of selectivity now share a platform with a superpower whose aim is the reverse. Washington does not seek a fairer court. It seeks a court that cannot reach its own nationals or those of its allies.

Who pays for international justice?

Article 115 of the Rome Statute provides two sources of funding. The first is assessed contributions from States Parties. The second is funds from the United Nations, subject to the approval of the General Assembly, particularly for situations referred by the Security Council. The Statute also allows voluntary contributions.

Assessed contributions follow a scale based on the scale used for the regular budget of the United Nations. Wealthy members therefore pay most. Because the United States and China are not members, the burden falls heavily on Japan and the larger European states.

For 2026, the Assembly of States Parties approved a programme budget of €196,852,900 and a staffing level of 1,008. That sum is modest for an institution expected to investigate atrocities across several continents.

Payment discipline is uneven. On 29 October 2025, outstanding contributions stood at €29.7 million. Thirty States Parties had arrears of more than one year. Thirteen had lost their vote under Article 112(8), which suspends voting rights when arrears equal or exceed two full years of contributions. One state had been in arrears for close to two decades.

The sanctions threat has had one perverse effect. In early 2025, the court appealed to members to pay early to cushion possible liquidity shocks. By August 2025 it had received more than ninety per cent of contributions. General Licence 13 now expressly allows States Parties to keep paying until April 2027. The question is what happens after that date if American correspondent banking is closed to the court.

When States Parties do not comply

The ICC has no police force. It depends entirely on states to arrest suspects, freeze assets, protect witnesses and enforce sentences. Article 86 of the Statute obliges States Parties to cooperate fully. Article 87(7) allows the court to make a formal finding of failure to cooperate. It may then refer the matter to the Assembly of States Parties, or to the Security Council where the Council made the original referral.

Recent cases show the limits of this machinery. Russian President Vladimir Putin visited Mongolia in September 2024 despite an ICC arrest warrant. Mongolia did not arrest him. On 24 October 2024, a chamber of the court found that Mongolia had failed to comply and referred the matter to the Assembly. The Assembly took note of the finding. No material penalty followed.

Netanyahu visited Hungary in April 2025. Hungary did not arrest him and announced its withdrawal from the court during the visit. On 24 July 2025, a chamber found that Hungary had failed to comply and referred the matter to the Assembly. Earlier, in 2015, South Africa did not arrest Sudanese President Omar al Bashir while hosting an African Union summit. South Africa later cited the episode as a reason for its attempted withdrawal.

The consequences of disobedience are therefore political and reputational. The Statute provides no fines, no expulsion and no trade measures. The only automatic penalty in the Statute concerns money: the loss of voting rights for serious arrears. A state that shelters a fugitive faces criticism from its peers. It does not face sanctions comparable to those Washington has now imposed on the court itself.

This imbalance is the core weakness of the system. A court that cannot compel cooperation from its own members cannot easily resist a superpower that can compel the global banking system.

The case against the court

A serious analysis must take the criticisms seriously. Six stand out.

The first is geographical concentration. The figures cited by Chad are drawn from the court itself. For most of its existence, the ICC has investigated and detained Africans far more than anyone else.

The second is the asymmetry of power. The permanent members of the Security Council can refer others while shielding themselves. Under Article 16, the Council can also defer an investigation for renewable periods of twelve months. Justice that depends on the votes of the powerful is not equal justice.

The third is limited output for considerable cost. In May 2026, the court held only seven detainees. Trials take years. Victims wait longer still. An annual budget close to €200 million invites hard questions about value for money.

The fourth is prosecutorial discretion. In September 2021, the then prosecutor announced that the Afghanistan investigation would focus on the Taliban and the Islamic State in Khorasan. He said other aspects would be deprioritised, which critics read as sparing American conduct. Amnesty International warned that the decision jeopardised the legitimacy of his office. Discretion exercised in favour of the powerful feeds the charge of selectivity.

The fifth is governance. The removal of a sitting prosecutor for serious misconduct damaged the moral authority of the court. Khan disputes the findings, and his lawyers argue that due process was not respected. Either way, the episode exposed weaknesses in internal oversight.

The sixth is the tension between peace and justice. South Africa argued in 2016 that arrest warrants for sitting leaders could undermine peace negotiations. That argument is contested, but it is not frivolous.

The case for the court

The defence of the court is equally weighty. It rests on five points.

First, the ICC is the only permanent court with general jurisdiction over genocide, crimes against humanity, war crimes and aggression. It is a court of last resort. Under the principle of complementarity, it may act only when national courts are unable or unwilling to do so. For victims in fragile states, it is often the only forum available.

Second, the docket is no longer only African. The court has investigations concerning Afghanistan, Bangladesh and Myanmar, Palestine, the Philippines, Ukraine and Venezuela. In 2022, forty three States Parties referred the situation in Ukraine. In 2023, the court issued a warrant for Putin. In 2024, it issued warrants for Netanyahu and Gallant. A former Asian head of state will stand trial in November 2026.

Third, the American campaign is itself evidence of change. Washington did not sanction the court when its defendants were warlords from Central Africa. The sanctions began when the court reached nationals of powerful states and their allies. The charge that the court targets only the weak sits awkwardly beside the fact that it is now under attack precisely for not doing so.

Fourth, the court sets standards. National courts in Africa, Europe and Latin America now try international crimes using definitions drawn from the Rome Statute. Chad cited such domestic trials in its own withdrawal notice. That domestic capacity owes much to the norms the court helped to entrench.

Fifth, abolition would not produce a fairer system. It would produce no system at all. The weak would lose their only forum. The strong would lose their only constraint.

Selective tool or global good?

The evidence supports a qualified verdict. The ICC is an imperfect global good that has, at times, operated selectively. The selectivity, however, flows mainly from the political architecture around the court, not from its founding design.

The Rome Statute applies equally to all States Parties and to all territories of States Parties. Selectivity enters through three doors. The great powers refused to join. The Security Council referral system lets permanent members shield their friends. Weak states with collapsed institutions are easier places to make arrests than strong states with armies.

The remedy for selectivity is therefore greater universality and more even enforcement. Dismantling the court would cure nothing. It would simply return the world to the condition that existed before 1998. In that world, the punishment of atrocity depended on victory in war or the whim of the Security Council.

The court must nevertheless earn back its legitimacy. Five reforms deserve priority.

First, States Parties should build resilience against sanctions now, not in April 2027. The European Union should decide promptly on the Blocking Statute. Members should consider dedicated payment channels and a resilience fund under Article 116 for sanctioned staff.

Second, the Assembly should elect the next prosecutor through a transparent, merit based process. The candidate must command confidence across regions, including in Africa.

Third, the Office of the Prosecutor should publish clear criteria for choosing situations and cases. Where it deprioritises allegations against powerful actors, it should explain why in detail.

Fourth, the court should invest more in complementarity. Support for national and regional courts in Africa and elsewhere would answer the charge of paternalism. It would also reduce dependence on The Hague.

Fifth, African States Parties that have announced withdrawal should use the remaining months to negotiate rather than depart. Their criticisms carry more weight inside the Assembly than outside it.

Conclusion: the choice before the States Parties

The designation of 9 October 2026 is not merely a dispute between Washington and The Hague. It is a test of whether international law can bind the powerful. For two decades, critics in Africa have asked whether the ICC is a court for the weak alone. The United States has now supplied an unexpected answer. When the court reached towards the powerful, the powerful moved to destroy it.

That answer does not erase the legitimate grievances of Africa. It does, however, reframe them. The problem has never been that the ICC is too strong. The problem is that it has been too weak to reach everyone equally.

The court will not end because Washington has blacklisted it. It will end only if its 125 members decide that it is not worth the cost of defending. The coming six months will reveal their answer. History will record whether the states that built the court in Rome had the courage to keep it standing.

Silas Mwaudasheni Nande is a Namibian educator, doctoral candidate in Education at the International University of Management in Windhoek, and an analytical writer on African governance, justice and international affairs.

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