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President Donald Trump’s administration either does not understand or does not care about the point of the International Criminal Court.
In announcing that the United States would try to “dismantle” the ICC, Secretary of State Marco Rubio recently wrote in The Wall Street Journal that “the ICC and its allies seek a standing world tribunal with near-unlimited reach, empowered to override the courts and constitutions of the U.S. and other sovereign states — and to prosecute and arrest our citizens.”
As examples of the court’s potential overreach, he cited the possibility of it taking action in response to activist pleas to prosecute Trump administration officials for deporting people to a notoriously inhumane El Salvador prison — regardless of their country of origin — and calls to treat the administration’s airstrike campaign against alleged drug smuggling boats as a crime against humanity.
The ICC is an imperfect institution. But to argue against its necessity is an affront to Jewish history, which has taught us, over and over again, that a country sometimes needs to be held to international account over its treatment of disempowered minority groups.
Because while the ICC is the self-described court of last resort, meant in large part to complement national courts, it exists at least in part because there are times that national courts — like nation states more generally — do not consider everyone within their borders to be worthy of their protection, and when words like “sovereignty” are used to bludgeon individual human rights and dignity.
The proof of the court’s importance lies in how deeply tied its origin story is to the crimes of the Holocaust, even though the ICC itself was only formally established in the 1990s.
Aryeh Neier, whose family fled Nazi Germany when he was a small child, was instrumental in the creation of the International Criminal Tribunal for the former Yugoslavia — the development of which was an important stop on the way to the creation of the ICC. Ben Ferencz, top prosecutor against the Einsatzgruppen at Nuremberg, was a prominent advocate both for the creation of the court and for the adoption of the Rome Statute, the treaty that established the court and the court’s jurisdiction over four core crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. (The U.S. has never ratified that treaty.)
Theodor Meron, who was born in Poland in 1930 and survived the Holocaust before becoming an Israeli diplomat, spent decades as a judge both for the ICTY and for a similar special tribunal for Rwanda. He was part of the delegation that led to the ICC’s establishment in the 1990s, and in 2024, he recommended that the ICC consider issuing warrants for the arrest of both Israeli and Hamas leaders for war crimes and crimes against humanity as a result of the Oct. 7 attack and the subsequent Gaza war.
It’s not coincidental that all these men were Jewish, and aware from firsthand experience of the dangers of unchecked national power.
Ben Ferencz deliberately drew a connection between the two in 2011, when he delivered the closing prosecution speech at the first trial ever heard by the ICC at its home in the Hague. “The case we present is a plea of humanity to law,” he said — the same statement he used in his opening statement at the Einsatzgruppen trial.
In a Prospect UK interview in 2024, Meron said he has always been driven by the desire to bring ours closer to being “a world with no holocausts.”
Neier, for his part, has criticized the ICC for its ineffectiveness, despite being one of its leading proponents. But writing in The New York Review of Books over the weekend, Neier — who suggested that Rubio’s announcement may be motivated by the coming Israeli elections — pointed out the court’s continued significance.
“The trial in the International Criminal Court of former President Rodrigo Duterte of the Philippines is scheduled to get underway this fall. While in power, Duterte presided over the summary executions of many thousands of Filipinos, most of them poor people, because they were suspected of using contraband drugs,” he wrote. “It is a shame to see the United States try to destroy the ICC — the only global institution with a mandate to address such horrors — merely because those subject to its jurisdiction may be Americans or their friends.”
There are those who see the ICC itself as an affront to Jewish history, including prominent Jews who have condemned the ICC over its outstanding warrant out for Israeli Prime Minister Benjamin Netanyahu’s arrest. They, too, point to Jewish history to make their case: Netanyahu’s office called the warrant a”modern Dreyfus trial,” and Israeli President Isaac Herzog said that “the outrageous decision at the ICC has turned universal justice into a universal laughing stock.” Meanwhile, attorney Alan Dershowitz posted, “The ICC has never indicted Assad. Of course not because he’s neither Israeli nor Jewish.”
Their common argument: that the ICC has become yet another venue for international antisemitism.
But Neier, Ferencz and Meron’s arguments in favor of the court are more persuasive. They didn’t just think the court was important; they saw international law as so necessary that they dedicated their lives to trying to make it matter, in part through the ICC. Meron said he was working for “a universe in which injustice and violence and mistreatment of people on ethnic and religious grounds is less likely.” That vision is only a threat to sovereignty when sovereignty is interested in injustice.
This does not mean that the U.S. government needs to agree with every ICC decision. Nor does it mean that every individual associated with the ICC is above censure. (Karim Khan, the chief prosecutor of the ICC, was accused of sexual misconduct and is now facing a vote as to whether he will keep his role; Ken Roth, former head of Human Rights Watch, noted that the accusations — and the fact that the ICC Executive Bureau found Khan’s denials lacking credibility — seriously challenge Khan’s ability to do his job.)
What it does mean is this: The ICC does not exist to be friendly — or, for that matter, to be unfriendly — to any country. Nor does it exist to undermine sovereignty, or to treat sovereignty as sacrosanct. To only think of the court in terms of protecting or violating sovereignty is to overlook its real purpose: to protect our shared humanity, and bring justice to people who are no less worthy of dignity or justice than Netanyahu, Rubio or Trump.
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