Sanctioning the ICC Could Put Most Travel Off-Limits for Trump
If the U.S. president is charged with impeding an investigation, it could make nearly all international visits a headache and a risk.
On his first day back in office, U.S. President Donald Trump took the first step toward possibly renewing the sanctions that he imposed against senior International Criminal Court (ICC) personnel during his first presidency. The last time, Trump incurred public outrage but nothing more. This time, he could find himself criminally charged—creating a headache and risk almost every time that he travels internationally.
During his first term, Trump froze the bank accounts and restricted travel of the chief ICC prosecutor, Fatou Bensouda, and a deputy. With great forbearance, they largely turned the other cheek. President Joe Biden lifted the sanctions after he assumed office.
But in his flurry of executive orders on Inauguration Day this week, Trump reversed Biden’s actions, enabling new sanctions to be imposed.
Trump’s original rationale for this extraordinary attempt to manipulate an independent institution of justice was two investigations that Bensouda had opened. One was in Afghanistan, which could have implicated George W. Bush-era interrogators, who are alleged by international observers to have performed some of their most grotesque torture there. The other investigation was on Palestine, which threatened Israeli officials who have been accused of committing war crimes in Israeli-occupied territories.
The fact that neither the United States nor Israel had ratified the ICC treaty did not relieve their officials from potential prosecution for crimes committed in locations that had joined the court because the institution has territorial jurisdiction.
Since then, a new chief prosecutor, Karim Khan, has taken the reins of the ICC. In Afghanistan, he has prioritized investigations of the Taliban and the Islamic State, signaling that U.S. torturers likely have nothing to fear. But he has acted vigorously in Palestine, charging three now-deceased Hamas officials for crimes allegedly committed on and after Oct. 7, 2023, as well as charging Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant under accusations of deliberately starving and depriving Palestinian civilians in Gaza.
The U.S. House of Representatives earlier this month adopted legislation authorizing sanctions against ICC officials because of the charges against these senior Israeli officials. Trump’s reversal of Biden’s executive order on the point suggests that he may soon be planning to act.
This comes amid a remarkable shift in the U.S. Republican Party’s attitude toward the ICC. When Khan charged Russian President Vladimir Putin with the alleged war crime of abducting Ukrainian children, Republican leaders applauded and pledged their support, setting aside a long history of antagonism toward the court because of the theoretical risk that it could prosecute an American.
But that seemingly principled support was revealed to be selective and fleeting when the party turned on the court for charging Netanyahu and Gallant. If Trump imposes new sanctions on Khan, then the aim would be to force him to drop the charges against these senior Israeli officials, as Secretary of State Marco Rubio urged during his confirmation hearing.
If sanctions are imposed, Khan is unlikely to be as forgiving as Bensouda. Article 70 of the Rome Statute, the treaty that established the ICC, criminalizes “impeding” or “intimidating” any court official to influence their official duties. Americans typically call this crime “obstruction of justice.” Even though the United States never joined the court, Trump would be vulnerable to this charge because his actions would be directed at reversing the charges against Netanyahu and Gallant, over which the court has jurisdiction.
If fighting in Gaza resumes after the first six-week phase of the current cease-fire, and Trump continues to provide Israel with arms and military aid as it again bombs and starves Palestinian civilians, he could also be charged with aiding and abetting Israeli war crimes.
Trump might try to slough off such charges in much the same way that he has his other criminal travails, but it would not be so easy. His pardon power does not extend to the ICC. There is no U.S. constitutional bar to international criminal charges against a sitting president.
More important, his international travel would suddenly be significantly restricted. All 125 ICC members, including all of the European Union, would be legally obliged to arrest him if he set foot on their soil. And even if handcuffs wouldn’t necessarily be placed on him as he landed in Brussels, São Paulo, Johannesburg, or Tokyo, there is a strong likelihood that he would be quietly told not to come. Trump should ask Putin what it feels like suddenly to become such a global pariah.
As a matter of law, there is no question that these senior Israeli officials deserve prosecution. The trucks filled with aid that is flowing into Gaza following the start of the cease-fire on Jan. 19 illustrate the humanitarian relief that Israel could have been allowing but instead allegedly blocked for the bulk of the war, despite Israeli officials’ regular and dubious denials.
The U.S. government has advanced certain procedural objections to the charges, but none hold water. The argument that Palestine is not enough of a state to have joined the court and confer jurisdiction, despite the United Nations General Assembly having voted overwhelmingly in 2012 to recognize it as a nonmember observer state, has been rejected twice by ICC pretrial chambers of judges.
The argument that the court should defer to good-faith Israeli efforts to prosecute its own alleged war criminals, under what is known as the ICC’s principle of complementarity, is belied by the utter lack of any announced Israeli investigation, let alone prosecution, of anyone for the starvation strategy that the country is widely accused of using—and indeed, of any senior Israeli official for any other alleged war crime in Gaza.
To the contrary, Netanyahu charged in May 2024 that “Khan takes his place among the great antisemites in modern times,” a typical statement of his cheapening of the genuine threat of antisemitism to try to deflect criticism of Israel.
In addition, the Guardian has reported that Israel’s Mossad intelligence agency threatened Bensouda—the ICC former prosecutor—and her husband. These allegations hardly reflect a good-faith effort to pursue possible war crimes.
Israel had every right to fight Hamas after the Oct. 7 attacks, but it had no right to rip up the rules of international humanitarian law that are meant to minimize harm to civilians. Israel lost global sympathy because of these systematic war crimes.
Rather than seeking impunity for these atrocities by attacking the ICC, Trump—who is eager for a comprehensive Middle East deal—should press Netanyahu to abide by the rules. If he doesn’t, then he risks a radically circumscribed world in which much of his travel—whether for summits, state visits, or even to tour one of his golf courses—is suddenly fraught or prohibited.
This post is part of FP’s ongoing coverage of the Trump administration. Follow along here.
Kenneth Roth, the former executive director of Human Rights Watch (1993-2022), is a visiting professor at Princeton University’s School of Public and International Affairs. His latest book, Righting Wrongs, will be published in February. X: @KenRoth