Positive Retorsion and the Power and Responsibilities of States Parties to Protect the ICC

[Jens Iverson is an assistant professor of international law at Leiden University.]

In November 2025, I wrote on this site about The Power and Responsibility of the EU to Protect the ICC from US Sanctions. There I discussed issues such as the use of the Anti-Coercion Instrument, (AKA “the Big Bazooka”), the Extraterritoriality (Blocking) Statute and the European Commission supported Digital Commons European Digital Infrastructure Consortium (EDIC), all of which could be used to protect the ICC.

The simple policy query often presented (in terms of what the EU should do) is usually framed in terms of existing laws and capacities. For instance: should the EU use the blocking statute in response to the US sanctions, to prevent the EU from being complicit? Is it time to respond to threats with counterthreat? To use the so-called “big bazooka” – the Anti-Coercion Instrument? If these should be used, how should they be used, and how would they help? What terms should be set?

In this post, I would like to suggest something simpler and less confrontational. This is a power and responsibility that falls on all States Parties to the Rome Statute: an approach I think of as “positive retorsion.” It involves overcompensation for wronged persons, principally ICC employees. Most fundamentally, the Assembly of State Parties should massively increase the ICC budget at its upcoming December meeting. 

The Trump Administration has essentially been seeking to take the officials of the ICC, and now the ICC itself, hostage. The Administration has been saying, in effect, “keep your authority away from us and from our allies and perhaps we will not make it expensive for you to continue to serve as judges, as prosecutors, and as the collective expression of the states parties to make international criminal law a reality.” The desired outcome for supporters of the ICC is not merely the release of current hostages; it is a clear commitment that the US is out of the hostage taking business for good when it comes to the ICC and other international organizations.

I propose that the best way to counter this threat is not with a counterthreat, but to create a response that makes the total effect of the sanctions a net positive for those under sanction. 

ICC employees do not wish to be sanctioned or work for a sanctioned organization because it is expensive and inconvenient. Ask yourself, how much would you have to be paid to undergo years of having inconvenient banking, to have loans and insurance interfered with, to have yourself and your family barred from the US? 

I don’t mean this rhetorically. Ask yourself how much you would have to be paid. There is a number. There is presumably a number for everyone at the ICC. There is very likely some benefit to your pension; support for your family, some immediate or deferred payment that would make the cost more than worth it.

The ICC can survive sanctions. In fact, there is some level of long-term budgetary increase which would more than outweigh the financial and non-financial costs of a few years of sanctions.

There is a better approach than merely dithering about whether and how to use existing sticks: simultaneously build a bigger set of carrots. The annual ICC budget is less than 200 million Euros. It is a pittance given what it delivers. The Dutch military budget is about 27 billion Euros. If 1% of the Dutch military budget was to be reallocated, it would more than double the ICC budget. The EU’s defence budget is 381 billion Euros. For what the EU spends on its defence in 5 hours, the EU could double the ICC budget. The total GDP of all States Parties is over 160% of the EU.

What if a massive ICC budget increase was on the table? What if further sanctions were known to result in an increase in staff pay? What if there was a commitment to respond to institutional sanction with remarkable and lasting institutional support? 

The general lay term for responsive measures to the Trump Administration’s sanctions might be “countermeasures.” This is a term of art in public international law: to simplify, countermeasures are generally measures that would ordinarily be illegal but are not wrongful because they are proportional and responsive to some other illegal conduct. Most substantive diplomatic responses are not countermeasures but “retorsions” – acts that are legal but optional, and unwanted by the state whose measures are unwelcome.

Increasing funding might be called “positive retorsion” because unlike the “negative retorsion” of, say, trade sanctions or diplomatic expulsions, the point is not so much to hurt but to overwhelm the negative action taken by the Trump Administration with so much reward that the threat is counterproductive. 

In summary: defending the ICC is a winnable issue, but it requires both clarity of purpose and creativity.

The law is an extremely flexible tool on this issue. It is not an algorithm that should just be applied mechanically. The best tool may be the simplest – be publicly willing to make the ICC antifragile by increasing budgets and overcompensating victims of US attacks.

Even with such a creative policy approach other areas of policy creativity or “positive retorsion” are needed. Beyond legal steps, the EU, working with other states, can continue to develop and provide non-US-based tools to the ICC and other potential sanctioned parties. These are positive contributions whose availability concretely improves flexibility and resilieny. They may compete with US-based services, but are not negative in the way trade sanctions or the recall of an ambassador is negative. 

The Assembly of States Parties and the EU are not used to rapid, unconventional responses. But perhaps there is still time, before 2026 is over, if there is enough will, foresight, and creativity. 

I want to end with five reflections on the Trump Administration’s actions.

First, the bare minimum states parties should do is make ICC employees whole, as far as that is possible. There is no way to entirely undo these sanctions, but the Assembly of States Parties could certainly treat this as the emergency it is. It can increase the budget to pre-pay salaries for the next, say, three years. (There is no guarantee that these sanctions will be removed as soon as a new US President is in charge, and the ASP should be prepared for that.). It can give employees “hazard pay” to compensate for the legal hazards and restrictions facing ICC employees, their families, and those who interact with them. These brave individuals are not just ICC employees: they are the nationals of every State Party. States should respond as proud, sovereign states that refuse to be bullied.

Second, if private entities do not provide services for the ICC and its employees, states should provide them themselves. There is nothing that private entities can do that is impossible for states to do. The US will have a harder time punishing sovereign states, particularly acting in concert, than private entities.

Third, there is no reason to think this is the end. See, for example, this attack on the International Court of Justice by the Editorial Board of the Wall Street Journal on the same unfounded and specious grounds used by Secretarty of State Marco Rubio. Ultimately, if the Trump Administration needs further distractions from its record, there are no obvious limits to the Trump Administration’s future attacks on sovereign states and the international organizations they have established… if those states allow themselves to be bullied. There is no excuse for the sanctions, but given the extraordinarily weak response from bullied states so far, it is hardly surprising the Trump Administration has continued, and will continue, to abuse its ability to sanction.

Fourth, it is time for the EU to use the tools at its disposal; and for non-EU states to use or craft similar tools. As far back as August 2025, the European Parliament called upon all EU institutions and member states to use all necessary measures to support and shield the Court, including through the activation of the Blocking Statute. It should consider using the Anti-Coercion Instrument and to ramp up its use as long as these sanctions are in effect. Other states have similar tools, and if not have the sovereign ability to craft them. Not using these measures has invited further bullying. The EU’s Anti-Coercion Instrument, (AKA “the Big Bazooka”) is intended as a deterrent to avoid being bullied. The EU could use it as a form of negative retorsion, imposing “punitive sanctions on individuals, companies and countries [including] tariffs and quotas; the restriction of intellectual property rights; and limiting access to the bloc’s financial markets, public procurement and E.U.-funded research programs.” It has not been used. It is intended to deter “economic coercion” including “refusing (or threatening to refuse) authorisation needed to do business” — arguably including authorization needed to use the US financial system. The Extraterritoriality (Blocking) Statute is designed to protect “EU operators engaged in lawful international trade and/or movement of capital, as well as related commercial activities, against the effects of the extra-territorial legislation.” The blocking statute can be used to nullify the effect in the EU of any foreign court ruling based on the foreign laws and allow EU operators to recover in court damages caused by the extra-territorial application of the specified foreign laws. 

Fifth, and finally, this should be treated as a serious threat to national security, not an irritation. This is for at least two reasons. First, effective enforcement of International Criminal Law is the only alternative to a world of growing instability. Second, refusing to adequately stand up to bullies is why bullies are currently on a rampage. International law is a need to have, not a nice to have. States Parties must treat threats to the ICC as the threat to security and sovereignty as it is. And budget accordingly.