The Gaza war has positioned the International Criminal Court in the forefront of world politics: the institution has since its creation in 1998 faced pressures on multiple fronts, externally and internally, with allegations of sexual harassment by prosecutor Karim Khan. And the cracks are showing.

When state members of the International Crimibal Court (ICC) were looking for a new prosecutor in 2021, Karim Kahn was only on the second back up list for a particular reason: having someone previously working as defense counsel before the court and supported by a coordinated write-in lobbying campaign by civil society organizations could be a sign of subjectivity. Though state members moved on and agreed upon Kahn.

20 Palestinians “filed a criminal complaint with the Dutch Office of the Public Prosecutor (Openbaar Ministerie) for impeding and influencing the ICC investigation into the “Situation in the State of Palestine” and the harassment, intimidation, pressuring and defamation of ICC staff, including the ICC prosecutor, in the course of this investigation”. The lawyers base the complaint on so-called journalist investigations into a campaign of intimidation by Israeli intelligence services against Karim Khan’s predecessor Fatou Bensouda. They say – based on that “media” work – that “the Dutch investigation should focus on (senior) members of the Israeli security apparatus”. According to Danya Chaikel, the International Federation of Human Rights’ representative to the court, “diplomacy alone clearly won’t solve this, and legal action is needed to hold those responsible accountable and to safeguard the integrity of the Court”.

The Dutch did open an investigation back in 2016 and provided protection measures for a representative from a Palestinian human rights group who was suffering “ongoing, well-organised and serious attacks, including death threats, interference in communications, intimidation, harassment and defamation” in The Hague. Civil society human rights groups keep trying to provide evidence to and. lobbying the ICC.

In August 2024, The Netherlands Bar took disciplinary measures on Monday against Dutch-Pakistani attorney Haroon Raza, who had filed “war crime” complaints with the International Criminal Court in The Hague and local authorities against Israeli President Isaac Herzog. Following a hearing on June 24, the related Board of Discipline ruled to reprimand the pro-Palestinian lawyer over a Dec. 30 social-media post on X in which he announced that he had submitted a criminal complaint against “settler” Van Koningsveld and “four other IDF murderers.” The ruling also ordered Raza to pay 1,250 euros ($1,375) in court costs, as well as to reimburse Van Koningsveld 50 euros ($55) in filing fees.

In his advice to the disciplinary court, the head of the bar association had concluded that Raza acted improperly by publicly claiming “that he believes that Mr. Van Koningsveld is guilty of serious criminal offenses.” The president also questioned the “quality and motive” of Raza’s filing, which he said “appeared to be aimed solely at generating publicity.” Raza “harmed the plaintiff’s interests disproportionately by sharing the complaint against him on X; the three-judge panel stated in the ruling published on Monday. “The defendant should have taken into account that this could have negative consequences for the plaintiff.”

The attorney, who has teamed up with Hezbollah activist  Dyab Abou Jahjah to badger Israeli civilians and soldiers with dual nationality, had accused the Dutch-Israeli journalist of “stealing land from Palestinians in occupied territory, walking around occupied territory threateningly with automatic firearms and carrying an unauthorized weapon.” Without sharing evidence, Raza claimed his filing, “substantiated by a comprehensive report from Amnesty International, implicates Mr. Van Koningsveld in a range of criminal activities in the West Bank.” In March, Raza urged the ICC and Dutch police to arrest Herzog when the Israeli head of state traveled to Amsterdam for the official opening of the country’s National Holocaust Museum. Raza told Qatar’s Al Jazeera Arabic network at the time that “due to the political climate, we do not expect the Dutch authorities to take action.” “Everything that we have received since Oct. 7 of last year is just an e-mail confirming the receipt of these requests,” added the Dutch lawyer.

Also in March, the mother of a Dutch-Israeli IDF reservist was harassed at her Amsterdam apartment and workplace by pro-Palestinian activists after Raza and Abou Jahjah called on their combined 50,000 followers on X to help track down IDF personnel with European passports.

ISRAEL AND US SENATORS TARGET THE ICC

The Palestinian Authority (PA) accepted the Court’s jurisdiction and deposited its instrument of accession to the ICC Statute in January 2015. According to The Guardian’s reporting, Israel’s external security service Shin Bet, army intelligence directorate Aman, and the cyber-intelligence division Unit 8200 were involved in operations targeting the ICC from that date.

Pressure on the ICC has also come from Israel’s main backer, the United States. “The 2020 US sanctions targeted senior ICC officials, including former prosecutor Bensouda, disrupting their access to global banking services, resulting in non-US banks refusing to provide services, loss of insurance coverage, and difficulties in contracting with numerous commercial providers,” reminds Chaikel. The US Senate’s Illegitimate Court Counteraction Act of 2023 “imposes sanctions against International Criminal Court (ICC) employees and associates if the ICC investigates or pursues charges against certain individuals,” including “members of the armed forces of U.S. allies or partners”.

12 republican US Senators threatened Khan with sanctions by letter in April, shortly before the ICC prosecutor made public arrest warrants against Israel’s Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant. “If you issue a warrant for the arrest of the Israeli leadership, we will interpret this not only as a threat to Israel’s sovereignty but to the sovereignty of the United States. Our country demonstrated in the American Service-Members’ Protection Act the lengths to which we will go to protect that sovereignty,” wrote the senators, including Mitch McConnell, the leader of the Republicans at the US Senate. “Target Israel and we will target you… You have been warned.”

“Regardless of the outcome of the [US presidential] election [on 5 November], whoever is elected has a duty and an obligation to ensure that the rule of law remains robust in the United States” says Carmen Cheung the executive director of Center for Justice and Accountability, “and that we continue to play an important role on the international stage when it comes to international justice. And that means, first and foremost, that we do not continue to attack and demonise the International Criminal Court as we have been”.

A CRITICAL TIME FOR THE COURT

In May 2024, the ICC Office of the Prosecutor warned anyone attempting to interfere with the court’s processes that such actions could constitute offenses against the administration of justice under Article 70 of the Rome Statute, the ICC’s founding treaty, and must cease immediately. The presidency of the court’s Assembly of States Parties expressed its concerns that same month over the “recent public statements” related to the Palestine investigation. “The Presidency regrets any attempts to undermine the Court’s independence, integrity and impartiality. Some statements may constitute threats of retaliation against the Court and its officials, in the event the Court exercises its judicial functions as mandated in the Rome Statute,” it said in a press release.

ICC member states have been following their own how-to-guide to dealing with attacks on their court. In June this year 93 States issued a joint statement expressing their “unwavering support for the Court as an independent and impartial judicial institution”. Another bullet point suggestion was: “Use social media posts from official government accounts to swiftly react to a threat or attack, even before issuing official statements”.  Chaikel says “ICC member states need to urgently and actively defend the Court’s independence and very survival, as the ICC is not designed to withstand these threats and attacks alone”.

Virginie Amato of the Coalition for the ICC, an NGO, describes the current situation as a critical time for the court, because even though “all this has happened before” the pressures have been “renewed with greater risks this year”. They are “all aimed at undermining independence and work of the court”.

The court in currently still suffering from “dealing with the aftermath of a serious cyberattack, which has been followed by ongoing cyberthreats [sic] and further attempted attacks,” as outlined in the budget submission which asks for a 10% increase on last year, including over 4 million for cyber security.

SEXUAL HARASSMENT ALLEGATIONS AGAINST KARIM KHAN

“We don’t have enough information to assess if it might be part of a broader strategy to undermine the Court,” says Chaikel. “It’s also essential that, generally speaking, all allegations are taken seriously, to uphold the integrity of the ICC and to ensure that any potential complainant is given the necessary support and opportunity to speak out safely,“ she continues. Privately, journalists covering the court discuss the risk of narratives being used to strategically undermine the Court’s credibility and legitimacy.

2025 – THE TRUMP SANCTIONS

Before Karim Khan’s tenure, the ICC had opened an investigation into alleged war crimes and crimes against humanity committed in Afghanistan, which indirectly implicated U.S. forces, among others. This investigation caused significant friction with the U.S., which does not recognize the ICC’s jurisdiction over its nationals or actions by its military abroad. Khan continued the probe into the situation in Palestine, looking into possible war crimes by both Israeli forces and Palestinian groups. This investigation has been particularly contentious, given the U.S.’s strong support for Israel.

The U.S. has historically been ambivalent about the ICC, officially never ratifying the Rome Statute that established the court. The Trump administration took an even more adversarial stance, seeing the ICC’s actions as threats to U.S. sovereignty and its military personnel. The decision to sanction Khan reflects broader geopolitical tensions where the U.S. uses sanctions as a tool to assert its interests, protect its citizens, and influence international law’s application, especially when it feels its actions or those of its allies are being unfairly scrutinized.

The sanctions on Karim Khan were enacted through an executive order by President Trump in 2025, specifically targeting the ICC for what the U.S. deemed as overreaching investigations into American or allied personnel. This order allowed for the imposition of economic sanctions and travel bans on ICC officials involved in such probes. The official reason cited was to protect U.S. national security interests and to defend U.S. sovereignty against what was perceived as an illegitimate overreach by the ICC. The U.S. also aimed to shield Israel from ICC investigations, reinforcing its stance as a key ally. The sanctions were also a loud signal to the international community about U.S. policy towards international judicial bodies that do not align with U.S. foreign policy objectives or security concerns.

These actions built on previous U.S. moves against the ICC, like the sanctions on Fatou Bensouda (Khan’s predecessor) and Phakiso Mochochoko, which were in place during Trump’s first term but later reversed by the Biden administration. By sanctioning Khan, the U.S. was sending a message about its stance on international law when it conflicts with national interests, possibly aiming to deter future investigations or to pressure the ICC into reconsidering its approach to cases involving major powers or their allies.

The decision was thus a mix of legal, diplomatic, and strategic calculations, reflecting both a response to specific ICC actions and a broader U.S. policy of asserting its position in international legal frameworks it views as challenging its sovereignty or the actions of its military and allies.

CONCLUSION

The imposition of sanctions on Karim Khan, the Prosecutor of the ICC, by the U.S. under President Donald Trump, could indeed pose significant challenges for pro-Palestinian NGOs trying to lobby the ICC. Here’s how these sanctions might impact their efforts:

• Access and Influence: With Khan barred from entering the U.S. and his assets frozen there, direct engagements, such as meetings or conferences in the U.S. where Khan might have been present, are no longer possible. This could limit the physical presence and direct advocacy opportunities for NGOs at events where Khan or other ICC officials might have been accessible.
• Resource Allocation: The sanctions might lead to a reallocation of Khan’s time or the ICC’s resources. Khan and his team might need to focus more on managing the implications of these sanctions, potentially reducing the attention they can give to ongoing investigations or new initiatives from NGOs.
• Public Perception: The sanctions could be seen as an attempt to influence or intimidate the ICC, potentially affecting its perceived independence. This could either rally more support for pro-Palestinian causes or make it harder for NGOs to gain traction if the ICC becomes more cautious in its approach to sensitive political issues due to international pressure.
• Legal and Operational Challenges: NGOs might find it more challenging to collaborate with the ICC legally or operationally. The sanctions could create a chilling effect, where NGOs might be more cautious in their interactions with the ICC, fearing secondary sanctions or other repercussions.
• International Support: The sanctions might influence how other countries view and support the ICC. Countries might be less inclined to support ICC actions against Israel or other allies if they fear similar repercussions. This could indirectly affect the leverage NGOs have in pushing for ICC action on Palestinian issues.
• Mobilization and Strategy: In response to these sanctions, pro-Palestinian NGOs might need to adapt their strategies, perhaps focusing more on international diplomacy, grassroots movements, or alternative legal avenues outside the ICC to maintain pressure on the issue.

Despite these challenges, NGOs often adapt to political and legal changes:

• Alternative Channels: NGOs might seek other international or regional legal bodies or human rights frameworks to advance their cause. They might also intensify efforts through the UN, other international courts, or national jurisdictions.
• Increased Advocacy: There could be a surge in advocacy and public campaigns to counteract the effects of the sanctions, aiming to bolster the ICC’s independence and support for Palestinian rights at an international level.
• Coalition Building: NGOs might strengthen coalitions with other human rights groups, increasing their collective voice and impact, potentially organizing more international pressure or legal actions in different jurisdictions.

In summary, while sanctions on Khan do complicate the landscape for pro-Palestinian NGOs lobbying the ICC, these organizations often find alternative ways to push for their objectives, adapting to new realities by possibly intensifying other forms of advocacy or seeking different legal avenues.