Written by Katherine Angell

Introduction

On August 20, 2025, the United States sanctioned four individuals involved in International Criminal Court (“ICC”) proceedings against either U.S. individuals or Israel.¹Press Release, U.S. Dep’t of State Off. of Spokesperson, Imposing Further Sanctions in Response to the ICC’s Ongoing Threat to Americans and Israelis (Aug. 20, 2025) (on file with U.S. Dep’t of State). The sanctions targeted two ICC judges, Kimberly Prost of Canada and Nicolas Guillou of France, in addition to two deputy prosecutors, Nazhat Shameem Khan of Fiji and Mame Mandiaye Niang of Senegal.²See International Criminal Court: New US Sanctions ‘A Flagrant Attack’ on Judicial Independence, U.N. News, (Aug. 20, 2025) [hereinafter ICC: New US Sanctions], https://news.un.org/en/story/2025/08/1165691. This round of sanctions followed previous action against four other judges and the ICC prosecutor, and according to an article released on September 23, 2025, a U.S. official stated that the government is considering entity-wide sanctions which could impact the ICC’s daily operations.³See id.; Anthony Deutsch, Humeyra Pamuk, & Stephanie van den Berg, Exclusive: US Could Hit Entire International Criminal Court With Sanctions Soon, Reuters, (Sept. 23, 2025, 11:45 AM), https://www.reuters.com/world/europe/us-could-hit-entire-international-criminal-court-with-sanctions-soon-2025-09-22.

In 2002, the ICC began its work as an independent international criminal court created by the Rome Statute in relationship with the United Nations system.⁴See Yvonne M. Dutton, Enforcing the Rome Statute: Evidence of (Non) Compliance from Kenya, 26 Ind. Int’l & Compar. L. Rev. 7, 7 (2016); Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90, 92 [hereinafter Rome Statute] (article two of the Rome Statute provides that the ICC shall be brought into relationship with the United Nations through its member states). The Court investigates and tries cases related to the most serious international offenses, including genocide, crimes against humanity, war crimes, and the crime of aggression.⁵See id. In November 2024, the ICC issued arrest warrants for Israeli officials for alleged war crimes and crimes against humanity in Gaza.⁶See ICC: New US Sanctions, supra note 2. The ICC is also investigating alleged war crimes committed by the U.S. in Afghanistan in 2001.⁷See id. Because both the U.S. and Israel are not parties to the Rome Statute, the ICC must look to its members to use foreign relations and deterrents like sanctions to encourage cooperation or call upon the U.N. Security Council to refer the case and compel cooperation to enforce the Court’s authority and preserve its efficacy.⁸See Rome Statute, supra note 4, at 139 (imposing a general obligation for member states to cooperate with ICC investigations and prosecutions); Stuart Ford, The ICC and the Security Council: How Much Support Is There for Ending Impunity, 26 Ind. Int’l & Compar. L. Rev. 33, 40 (2016) (discussing the Security Council’s authority to compel states to cooperate with the ICC’s investigations). Because the Security Council is unlikely to surpass a U.S. veto, the members of the Rome Statute must act decisively to enforce the ICC’s authority by sanctioning governments that impede the Court’s investigations or use other diplomatic tools to actively pressure non-members to cooperate.

The Rome Statute’s Enforcement Mechanisms: Referral by the U.N. Security Council

The ICC’s enforcement method rely on member states’ willingness to impose sanctions against states that fail to cooperate with the Court or on the Security Council’s willingness to compel cooperation.⁹Ford, supra note 8, at 40. While the U.S. and Israel are not party to the Rome Statute, the Statute does allow the Court to exert jurisdiction over non-party states if the criminal conduct that otherwise falls within the Statue’s jurisdiction occurred on that state’s territory or was committed by a national of that state.¹⁰See Rome Statute, supra note 4, at 139. A case can also be referred to the ICC by the U.N. Security Council, so long as one of the permanent member states does not veto the referral.¹¹Id. While the ICC claims to have jurisdiction in this case because the alleged crimes are occurring on Palestinian land, a member state, the U.S. and Israel maintain that their nationals cannot be subject to ICC jurisdiction unless the Security Council refers the case.¹²See Deutsch et al., supra note 3; Liran Bean, Netherlands Dispatch: US Sanctions on International Criminal Court Staff Sharpen Debate Over Sovereignty and Judicial Reach, Jurist News (Aug. 27, 2025, 11:09:32 PM), https://www.jurist.org/news/2025/08/netherlands-dispatch-us-sanctions-on-international-criminal-court-staff-sharpen-debate-over-sovereignty-and-judicial-reach/. The U.S. is a permanent member of the Security Council and is likely to veto referring the case against Israel to the ICC, but if a permanent member state is a party to the case or situation, as with the ICC’s investigations into U.S. actions in Afghanistan, that party must abstain from voting.¹³U.N. Charter, Ch. V. Therefore, if the international community wishes to protect the authority of the ICC’s investigations and force compliance to the ICC’s jurisdiction as a response to the U.S.’ sanctions imposed on ICC officials, the Security Council could vote to officially refer the case against the U.S. to the ICC, but the U.S.’s veto power on the Security Council would render that avenue ineffective for forcing cooperation in the case against Israel.¹⁴See U.N. Charter, Ch. V; Rome Statute, supra note 4, at 139.

The Rome Statute’s Enforcement Mechanisms: Member Action

            The most viable avenue for enforcement of the ICC’s authority to investigate and prosecute international crimes is actions taken by the Statute’s members.¹⁵See Ford, supra note 8, at 40. Without member states honoring their obligations to cooperate fully with ICC proceedings, the ICC cannot effectively prosecute crimes.¹⁶See Dutton, supra note 4, at 7. Generally, member states refer cases to the Court, which removes obstacles to cooperation since the state involved submitted the case, but the ICC may take a case that an ICC prosecutor brings proprio motu–on one’s own initiative.¹⁷See id. at 8–9. The ICC first brought a case proprio motu in 2009 against its member state, Kenya, in the aftermath of post-election violence.¹⁸See id. at 11–12. The Court chose to bring the case proprio motu after Kenya refused to self-refer the case, but the Court ultimately had to drop the case in 2014 due to Kenya’s lack of cooperation and lack of cooperation by other member states with the proceedings by not putting requested pressure on Kenya to comply, even going so far as to welcoming Kenyan officials for high-profile visits despite the country’s ongoing resistance to the ICC’s proceedings.¹⁹See id. at 7. The Kenyan case shows how the ICC’s efficacy is directly tied to how willing its member states are to back the Court.²⁰See id. The ICC still has some level of effective deterrence even without ideal compliance to its requests and proceedings.²¹See id. at 22. While the Kenyan case was ultimately dropped, the proceedings still effectively summoned Kenyan officials for hearings and encouraged Kenyan officials to promote peace in the next election that occurred because the ICC’s case still drew international scrutiny.²²See id. at 7.

Given the U.S.’s continued resistance, and sanctions on the ICC for investigating U.S. and Israeli officials, members of the Rome Statute must take more active roles to effectively enforce the ICC’s authority and fulfill their obligation of full cooperation with its investigations.²³See id. Some member states, such as France and Spain, have been vocal enough about their support for the ICC’s investigation into Israel that Israeli President Netanyahu avoided the two states’ airspaces on his way to New York for the U.N. General Assembly.²⁴Liam Stack, Netanyahu Took a Circuitous Route to the U.N. Meeting, New York Times, (Sept. 26, 2025), https://www.nytimes.com/2025/09/26/world/middleeast/netanyahu-flight-un-meeting.html. The member states of the Rome Statute must similarly use diplomatic efforts or other deterrent measures on the U.S. if the independence and efficacy of the ICC is to be preserved.²⁵See Ford, supra note 8, at 40.

Conclusion

With the U.S. taking a less conciliatory role on the international stage, other states must begin to act to counter the U.S.’ actions to protect international peace and order. Because of the U.S.’s presence and veto power on the Security Council, the avenue for referring a case and forcing greater cooperation with ICC investigations is unlikely to materialize. The ICC, therefore, relies primarily on the actions of the members of the Rome Statute to uphold its independence and efficacy on the world stage. Therefore, the Court should urge its members to stand more strongly by the Statute through diplomacy or sanctions against the U.S. and Israel for their lack of cooperation.