Efforts to Protect the ICC from Sanctions: Dialogue between States Parties and Non-States Parties

[Emre Acar is a PhD Candidate at Leiden University’s Grotius Centre for International Legal Studies of Leiden Law School]

In recent years, the International Criminal Court (ICC) has faced a growing number of diverse and aggressive political attacks from both Non-States Parties and States Parties. As external threats, the Trump Administration has imposed unilateral sanctions on the Court’s officials (on 6 February, 5 June, 20 August and 18 December 2025) and civil society.  Furthermore, others, such as Israel and Russia, have conducted or might have supported espionage, retaliation campaigns, and cyberattacks against the Court. These political attacks have contaminated the actions of some States Parties, resulting in a broader backlash against the ICC, including Hungary’s withdrawal, and Burkina Faso, Niger, and Mali’s intention to withdraw from the Rome Statute, and Italy, Mongolia and Tajikistan’s non-cooperation. Since these examples of political attacks test the resilience of the ICC, the Assembly of States Parties (ASP), at its 24th session, underlined the need to take collective and concrete measures to protect the ICC’s independence, integrity, and indispensable work in the fight against impunity. As an institutional response for this purpose, the ASP authorised and encouraged States Parties to engage in dialogue with Non-States Parties with a joint declaration.

The suggestion of dialogue serves as a political signal to attackers, primarily the US, inviting discussion on the matters that have led them to target the Court officials. Given that the context and forms of this potential dialogue remain somewhat ambiguous, the governance actors of the ICC should carefully establish a clearer framework for such engagement, as it carries certain risks for the ICC’s legitimacy if it involves negotiating core legal principles such as jurisdiction, head-of-state immunity, or prosecutorial independence. Hence, this post first explores what “dialogue” might entail, then examines the likely context of dialogue based on the demands of Non-States Parties in such discussions. It concludes that engaging in dialogue with Non-States Parties may offer a pragmatic response to external threats; however, it should be limited and conducted without opening up the ICC’s legitimate mission to discussion.

Dialogue with Non-States Parties

At the 24th session, the ASP encouraged dialogue with Non-States Parties through paragraph 4 of the declaration and paragraph 177 of the omnibus resolution as a collective response demonstrating ‘the unity of States Parties in the turbulent times being faced’. These indicate States Parties’ commitment to ensure that the Court continues to function effectively and independently, unaffected by external threats. The wording of the Declaration and Resolution on dialogue slightly differs. While the Declaration refrains from establishing a direct link between ‘dialogue’ and sanctions, the Resolution encourages ‘further constructive and inclusive dialogue’ in the context of challenges to the ICC. The Declaration and Resolution determined certain safeguards for a dialogue, including ‘full respect for the Rome Statute’ and ‘the independence, impartiality and integrity of the Court’. Considering the Non-States Parties clearly disregarded these safeguards while attacking the ICC, this framework appears to be determined more for States Parties.

At the ASP, the statements of States Parties were not explicit on dialogue with Non-States Parties. Certain States Parties, such as Germany, Japan, Australia, Canada, Denmark (on behalf of the EU), France, Iceland, Italy, Liechtenstein, the Netherlands, Portugal, and the UK, emphasised the importance of engaging in constructive dialogue with Non-States Parties for strengthening the fight against impunity, and further enhancing the effectiveness and universality of the Court. Among States Parties, only New Zealand adopted a more transparent stance regarding endorsement of the pragmatic significance of dialogue. Signalling certain aspects of the process, this statement described the dialogue as an opportunity for deliberating sensitive issues such as ‘complementarity, prioritisation, universality, and possible amendments.’ While most of the African and Latin American States Parties were silent concerning the dialogue, the State of Palestine expressed their concerns by mentioning that ‘there is a difference between dialogue and extortion.’

The ICC’s and ASP’s previous practices include references to dialogue in different contexts. The ICC needs to engage in judicial dialogue or have diplomatic engagement with Non-States Parties as a legal means to address the practical obstacles. The ASP’s resolutions include references to political dialogue with all stakeholders, the African Union, the United Nations, and between States Parties and the Court. Compared to these examples, the recent suggestion of dialogue between States Parties and Non-States Parties marks the beginning of a new process of exchange over political issues, and potentially renegotiation of certain provisions of the Rome Statute.

The Declaration and Resolution formulated the dialogue to some extent in an ambiguous terms; possibly to provide flexibility to the States Parties in conducting such engagements. However, the ASP Presidency and the Bureau of the ASP need to clarify ‘possible modalities or fora for such dialogue’, define its anticipated outcomes and might appoint a facilitator for this process. The dialogue could be integrated into existing mechanisms of the ASP, such as the Strategy for Responding to Political Attacks, which provides certain steps for coordinating responses to threats or attacks against the Court. Furthermore, the ASP’s functions in promoting universality and cooperation could be reflected in the design of the broader framework. On the other hand, the judicial leadership, namely the ICC President and Prosecutor, should consider the process and implications of the dialogue in their internal coordination meetings and coordinate with the ASP Presidency, while refraining from direct participation in this political dialogue.

What might be the scope of dialogue?

Understanding the potential demands of Non-States Parties is a key factor in determining the scope of dialogue. In this regard, the objectives of their political attacks are relevant to understanding their demands. News reports, blog posts, and official statements show and imply that the US perceives the ICC as an illegitimate court, a threat to its national security, and strongly opposes its investigations in Palestine or Afghanistan, and rejects the arrest warrants for Israeli officials. Even these brief explanations show that the US seeks to stop the execution of arrest warrants for heads of state of Non-States Parties and aims to prevent the ICC from launching further investigations against the US and its allies. Therefore, there is a high possibility that the dialogue could include demands on dismissal of investigations on certain situations, heads of state’s immunity for Non-States Parties and deferral of certain arrest warrants. At the same time, this short and non-exhaustive list also makes matters that should not be discussed in the dialogue. Because it is difficult to take a positive approach to the States Parties being able to discuss these claims without undermining the Court’s legitimacy.

Firstly, the dialogue potentially could involve discussions over prioritisation of certain investigations over others, and demands for the suspension of ongoing investigations and arrest warrants against the officials of the Non-States Parties. States Parties cannot revoke an ICC-issued arrest warrant, but they can only initiate a deferral at the UNSC to suspend the execution. Under Article 16, the UNSC could request a deferral of an investigation and prosecution for a year. The US resorted to this provision with Resolution 1422 and Resolution 1487. Article 16 applies to all investigations or prosecutions under the Statute, regardless of how they were initiated. This means that during the deferral period, the ICC cannot request the enforcement of the warrant by States. This is not impacting the legal validity of the arrest warrants, and once the deferral expires, the ICC can resume the execution of arrest warrants. This deferral request could be one of the legal solutions within the framework of the Rome Statute. However, this option would force the States Parties to choose between saving the Court from sanctions and preserving its reputation in the eyes of the victims. Moreover, it is an option that is incompatible with the resolution’s fight against impunity safeguard. In practice, due to the veto power in the UNSC, it is politically impractical to implement this option, which requires Russia’s support and possibly negotiating the suspension of the arrest warrant against Putin.

Secondly, another potential demand could concern the prevention of ICC investigations and arrest warrants for the sitting heads of state from Non-State Parties. This issue is one of the main reasons for the coercive measures directed at the ICC. In this context, the provisions of Article 27 of the Rome Statute overcome the immunity of these officials before the Court and show that sovereignty and any official capacity do not shield heads of state from international criminal responsibility. However, the controversy arises in the context of state cooperation and execution of arrest warrants against a leader of Non-States Parties, due to obligations based on Article 98 (waivers for the immunities of third states). In its jurisprudence, in the Jordan and Mongolia cases, the ICC clarifies that ‘Article 98(1) neither supplements, modifies, nor provides exceptions to article 27(2)’ and ‘personal immunity of officials, including Heads of third States, is not opposable in proceedings before the Court, nor a waiver of immunity is required under article 98.’ Nevertheless, a broad academic discussion regarding the relationship between Article 27 and Article 98 arises in situations involving officials of Non-States Parties. This legal controversy benefits the US and other States targeting the Court and rejecting the arrest warrants against Israeli and Russian officials. While dialogue with Non-States Parties might include demands for the reinterpretation of these articles, the ICC’s investigations into officials of third states based on territorial jurisdiction are legally grounded and consistent with the Statute. Any dialogue discussing the restriction of this jurisdiction or prioritisation of certain investigations would undermine the authority of the ICC. Such discussions would conflict with the safeguards outlined in the resolution, as they risk weakening the fight against impunity rather than strengthening it.

Conclusion

As a constructive diplomatic response, the suggestion of dialogue with Non-States Parties demonstrates that the governance actors of the ICC are making efforts to mitigate and prevent the impact of sanctions and the willingness of States Parties to address certain issues. However,  Trump’s latest sanctions prove the difficulty of conducting an effective and constructive dialogue with Non-States Parties. Furthermore, potential demands of Non-States Parties concerning the suspension of investigations, deferral of arrest warrants, recognition of head-of-state immunity for officials of Non-States Parties, or the prioritisation of certain situations could cause irreparable damage to the legitimacy and authority of the ICC. While any amendments to the Rome Statute could take years to implement, the dialogue could buy some time for the Court to continue on some existing investigations.

The ASP Presidency and the Bureau of the ASP must clarify and establish a clearer institutional framework, and any dialogue should exclude discussions on the Court’s jurisdiction, the applicability of Article 27, the execution of arrest warrants, or the prioritisation of investigations. A dialogue that opens these issues to political bargaining will risk rather than protect the ICC’s independence and impartiality. In this sense, dialogue should be approached at most as a strategy to mitigate external threats, and should not be seen as a significant means of compromise. As the rule of power becomes increasingly pronounced, protecting the judicial institutions based on the rule of law should not involve accepting terms that impose legal constraints dictated by the powerful. In an increasingly hostile political environment, protecting the ICC cannot just rest on dialogue with Non-States Parties. States Parties must exert their utmost efforts to mitigate the impact of sanctions, intimidation, and incidents of non-cooperation, while safeguarding the Rome Statute system. They should continue to provide unified political, financial, and operational support to the ICC, alongside active cooperation with civil society and other stakeholders. The desired concrete measures must protect the independence and impartiality of the ICC and its fight against impunity; they must not come at the cost of subjecting its core legal foundations to political negotiation.

Photo Attribution: “The International Criminal Court at The Hague“ by Tony Webster is licensed under CC BY 2.0