Law, Not War: Why Cuba should Join the International Criminal Court in an effort to avert American Aggression

[Mikel Delagrange is a Cuban American lawyer who worked for 12 years at the ICC and is currently the Senior International Legal Advisor at the Wayamo Foundation

Mark Kersten is an Assistant Professor of Criminology & Criminal Justice at the University of the Fraser Valley in Canada and a Senior Consultant at the Wayamo Foundation]

There is no indication that the Trump administration’s thirst for war or its disregard of international law and state sovereignty will end with its ongoing war in Iran. On the contrary, aggression in Venezuela and Iran, as well as the impunity enjoyed by the United States following multiple unlawful military actions, suggests that additional violations of the territorial integrity of Washington’s adversaries are likely. Given recent developments, including threats of a takeover and an enhanced military blockade enforced by the USS Iwo Jima and USS San Antonio, Cuba appears to be next. What are the country’s options, and could joining the International Criminal Court (ICC) be among them? In this post, we argue that becoming an ICC member-state is in Cuba’s interest as well as in the interests of any state seeking to mitigate American aggression. We argue this, in line with the famous call from Nuremberg prosecutor Benjamin Ferencz: law, not war.

When someone tells you who they are, believe them. When someone tells you what they’re preparing to do, take them seriously. President Trump and Secretary of State Marco Rubio have both recently declared Cuba as their next target for regime change, with all options to effectuate that change on the table, including unlawful acts of aggression. To fast track that change, the U.S. military has initiated a near-total blockade around the island,  which has already resulted in a humanitarian crisis involving food and medical shortages, transportation and agricultural paralysis and electrical blackouts in hospitals and schools.

There are grounds to believe that the Trump administration could be committing multiple international crimes, including the crime of aggression, crimes against humanity, and potential war crimes (if an armed conflict is determined to exist between Cuba and the U.S.). In what follows, we lay out these allegations and argue that even if the ICC cannot prosecute the crime of aggression in this context, joining the Court could increase the costs of American belligerence in Cuba and elsewhere.

The Crime of Aggression, Crimes Against Humanity and War Crimes

On the face of it, it is possible that the United States is already committing acts of aggression as well as crimes against humanity in Cuba, via its embargo. According to Article 8(bis) of the Rome Statute, the Crime of Aggression is defined as:

1. …For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:
   c) The blockade of the ports or coasts of a State by the armed forces of another State;

At the same time, there is an argument to be made that the U.S. may either be committing or risks committing the following crimes against humanity and potential war crimes, if a finding of an international armed conflict is established between the U.S. and Cuba, via its blockade:

• Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute;
• Wilfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii);
• Persecution (political/national group) as a crime against humanity contrary to article 7(1)(h);
• Other inhumane acts as crimes against humanity contrary to article 7(1)(k).

The embargo has already led to serious shortages of food, medicine and fuel. Cuba is facing a spiraling humanitarian crisis intentionally imposed by Washington. And while there may not yet be starvation or widespread death, the risk of both is growing by the day, and the sordid lesson from Gaza is that the world must not wait until blockades and the denial of food and medicine express themselves in the wholesale destruction of civilian life.

Permissive Grounds for Aggression

Many Cuban-Americans are eager to displace the Cuban government. Recently, and seemingly contrary to the orders of Cuban-American Secretary of State Rubio, a group of armed mercenaries were sent on what appears to have been a suicide mission to invade Cuba. When the single boat was inevitably destroyed by the Cuban navy, politicians in Miami decried the incident as murder in what may have been an attempt to incite American public opinion in favor of invasion. Pretexts in the Cuban-American conflict (as in the Iranian context) have historically been easy to construct. Remember the Maine!

How are such acts and threats to the sovereignty of Cuba possible and with such minimal diplomatic costs to the U.S.? One could argue that invasions and illegal acts of coercion towards Cuba (and Venezuela) are precisely why the U.S. Administration has sought to undermine international law (with Trump recently claiming “I don’t need international law”) and the so-called rules-based order. But Cuba is making it easy for them. The act of aggression of a militarily-enforced blockade is made diplomatically possible in part because of Cuba’s political isolation and the resulting unwillingness of states to defend its territorial integrity. This contrasts with other recent cases. For example, while the Trump Administration considered many different options to extract concessions in the context of the threatened annexation of Greenland, a military blockade on Denmark, an EU member state with diplomatic clout and many allies, certainly wasn’t one of them.

In an effort to stave off invasion and elevate the importance of international law to its case, Cuba should consider signing the Rome Statute of the International Criminal Court and become the 126^th State Party of the Court. Our argument for Cuban accession to the Rome Statute rests on five points.

Why Cuba should consider joining the ICC

First, Havana should sign and ratify the Rome Statute to create a potential operational risk for the Trump administration that does not currently exist. American administrations since President William McKinley (Trump’s idol) have operated with impunity in the context of Cuba, citing various quasi legal pronouncements and instruments as the basis for doing so, from the Monroe Doctrine and Platt Amendment to the Cuban Liberty and Democratic Solidarity Act (Helms-Burton Act). If Cuba were a State Party of the ICC, the perpetration of any crimes would no longer be subject to American jurisdiction alone. The ICC could intervene and label those responsible for international crimes as suspects with potential international arrest warrants issued against them. This threat, realizable or not, would nevertheless feature in the Trump Administration’s decision-making calculus concerning the use of military force in Cuba and could therefore serve as a potential deterrent.

Despite all its bluster concerning the Court, the Trump administration appears to prefer not to contend with extra-territorial jurisdiction on its actions. A case in point is Venezuela. Reports suggest that it is not by accident that the Trump Administration has yet to sanction the ICC as an institution, despite threats to do so. The ever-transactional Trump administration is said to be seeking a quid pro quo from the Court: don’t issue arrest warrants against Americans in the context of the US Military’s recent involvement in Venezuela (Venezuela is a State Party to the Rome Statute) and the Americans won’t sanction the institution.

While the ICC, as an impartial and independent institution should be in no danger of capitulating to such demands, a recent decision by the OTP to close the Venezuela II preliminary examination into America’s sanctions on Venezuela suggests that the Court may not be deaf to political pressures and context. Regardless, the fact that those overtures are being made signals a degree of concern on the part of the Trump administration. In addition to ICC arrest warrants being an obvious disqualifier for any Nobel Peace Prize, President Trump knows that he will one day be out of office. Despite his tough talk, Trump surely doesn’t envy the travel restrictions placed on his friends Vladimir Putin and Benjamin Netanyahu. As a citizen, Trump is also uniquely exposed to the jurisdiction of international criminal law. Unlike his strongman political allies, Trump has a business empire associated with his name that spans from Latin America to Europe, both ICC regional strongholds. Simply put, being labelled an international criminal is bad for his brand and something he’ll want to avoid as much as possible.

Second, by signing the Rome Statute and referring themselves to the Court, Cuba could reframe the blockade as an international crime. As mentioned above, the US blockade may fit within the definition of the crime of aggression. Of course, and thanks to France, Canada, and the United Kingdom, the Crime of Aggression is nearly impossible to implement because it cannot be investigated when the offending state is not a member of the ICC, as is the case with the United States. However, if the Cubans sign the Rome Statute, including the provisions concerning the crime of aggression, they could make a referral to the ICC framing the blockade in a similar fashion to how the blockade of Gaza was framed, specifically as constituting crimes against humanity and potentially war crimes under the Rome Statute.

Referring itself to the ICC would force the Court’s Prosecutor to open a preliminary examination into the situation in Cuba. Even if Cuba does not join the ICC, it could still voluntarily request that Court to exercise jurisdiction over its territory, under Article 12(3) of the Statute, something that other states – Ivory Coast and Ukraine – have previously done. Whether or not any such request would lead to an official investigation would be up to the ICC Prosecutor. However, merely initiating a preliminary examination heightens the operational risk for the Americans, and may even lead to them reconsidering the role of the military in engaging with Cuba going forward. 

Third, unlike Venezuela or the Philippines, Cuba may have little to fear from signing the Rome Statute. Despite their diplomatic affinity for other American adversaries, the Cuban government has little in common with the likes of Venezuela (under Nicholas Maduro), Philippines (under Rodrigo Duterte) or Iran (under the Ayatollah Ali Khamenei), all of whom face longstanding and credible allegations of widespread and systematic crimes against humanity. Even Cuba’s most strident critics in Miami would be hard pressed to manufacture claims of Cuban authorities killing. Allegations of Cuba detaining dissidents is the most common refrain from Miami. Even according to their own allegations, the number of detained “political prisoners” historically tends to hover between 100-200, with a notable and unfortunate spike following the Covid-19 protest of 11 July 2021. Should Havana want to insulate itself from ICC scrutiny and demonstrate good faith with respect to international criminal law, it could immediately release all remaining  political prisoners not involved in covert operations for the United States, as it did in January 2025. It could also signal that it will not only join the ICC but also cooperate closely with the Court.

History suggests that states that engage in genuine and constructive cooperation with the ICC are rarely targeted by the institution because of the Court’s emphasis on positive complementarity, meaning that the institution seeks to galvanize domestic accountability for international crimes. The upshot is that if there are concrete concerns about Cuban wrongdoing that could fall under the Rome Statute, Havana could work with the ICC to ascertain what accountability measures are necessary to improve its own human rights record, address any potential wrongdoing, and avoid being targeted with any arrest warrants and implement them internally. Other states – Colombia and Guinea, for example – have done just that in recent years.

Fourth, signing the Rome Statute would position Cuba among the 125 states who continue to support international criminal law – even if not always consistently, despite American saber rattling and threats. By becoming a state party, Cuba’s allies – especially in Africa but also in Latin America and Europe – might be more willing to come to Cuba’s aid without fear of retaliatory sanctions and out of a principled legal position against international crimes and violations of state sovereignty. Some of those states might recall the role that Cuba has played in the Global South for the mass mobilization of doctors, not soldiers – with the notable exception of Operacion Carlota where volunteer Cuban soldiers confronted Apartheid South Africa and won, helping to win eventual independence for Angola, Namibia and South Africa in the process.

Today, those states might view Cuba’s willingness to bind itself to the Rome Statute, and its prohibitions on crimes against humanity, war crimes, and genocide, as an act of good faith in relation to Havana’s commitment to international law, including towards its own citizens. Those states who are rightly concerned about the trend of aggression and violations of territorial sovereignty emanating from Washington, and who have also consistently voted against the blockade at the UNGA, would now be in a position to enhance their support for Cuba by supporting the Court and the independence of its processes.

Many are already walking a similar tightrope in the context of the ICC’s Gaza investigation, supporting the Court and its ongoing investigations as an indirect way to support civilians and accountability in Palestine. Perhaps some states parties, having already been subjected to retaliatory tariffs by the U.S. (Spain, South Africa) could even join Cuba in their referral of the situation in the country to the Court, and do so not out of allegiance to Havana but out of fealty to international law and accountability.

Finally, even if the Cuban government would rather negotiate with Trump than to “poke the bear”, experience shows that, with this Administration, it is far better to negotiate from a position of strength rather than one of desperation. It is not a panacea, but Cuba joining the ICC could change the equation for the Americans by using the Rome Statute as a shield against U.S. belligerence and economic strangulation. Facing invasion and given the pressing need to prioritize the protection of civilian life and prevent atrocities, that is among the most obvious and best cards that the Cubans have left to play.