From Engaged to Destructive Exceptionalism: The United States and the ICC

[Brianne McGonigle Leyh is Professor of Global Justice Studies at Utrecht University’s School of Law and leads the university’s Global Justice Investigations Lab. She co-directs the Netherlands Institute of Human Rights (SIM), is a member of the Montaigne Center for Rule of Law and Administration of Justice, and is a Senior Peace Fellow with the Public International Law & Policy Group (PILPG).]

On 9 October 2026, hours after it was announced that Navi Pillay, a former ICC and ICTR judge, won the Nobel Peace Prize, the Trump administration announced a sweeping new round of sanctions against the International Criminal Court (ICC), marking a dramatic escalation in its campaign against the Court.  

The Trump administration formally designated the Court itself under its sanctions regime, adding the institution to the US Treasury’s Specially Designated Nationals and Blocked Persons (SDN) List. This represents a significant escalation from the previous sanctions targeting individual ICC judges and prosecutors. The designation subjects the Court itself to US asset-blocking and transaction restrictions, potentially disrupting its access to financial institutions, commercial services, and technological infrastructure. At the same time, the Treasury’s Office of Foreign Assets Control (OFAC) issued four general licenses creating exceptions to these restrictions. General License 13 temporarily authorizes transactions necessary to maintain or wind down the Court’s operations, including contributions from States Parties, salaries, insurance, utilities, and routine commercial services, until 7 April 2027. General License 14 permits telecommunications, internet services, enterprise software, cybersecurity, and certain cloud-based services to continue, without specifying an expiration date. General License 15 authorizes the processing of pension payments, subject to restrictions concerning sanctioned individuals, while General License 16 allows transactions necessary for the continued detention, health, safety, and welfare of nine specifically identified ICC detainees. Although these licenses provide important safeguards against immediate operational disruption, they do not reverse the institutional designation. The Court’s continued functioning now depends, in part, on the scope and durability of exceptions granted by the very government seeking to constrain its activities.

The announcement follows weeks of mounting uncertainty over the Court’s future. Just as world leaders gathered in New York for the opening of the 81st session of the United Nations General Assembly in September, reports (see also) emerged that the administration was preparing to sanction the ICC as an institution. Unlike the targeted sanctions already imposed on individual Court officials, including President Tomoko Akane, the new measures go to the heart of the Court’s ability to function and create legal and commercial uncertainty. The 9 October announcement marks a significant turning point in the long and difficult relationship between the US and the ICC. It also signals a shift from what I described in my previous work as “engaged exceptionalism” toward a more coercive and destructive form of exceptionalism.

Forms of Exceptionalism

The US has never treated its relationship with the ICC as a simple choice between support and opposition. From the negotiation of the Rome Statute onward, the US supported some forms of international criminal accountability while resisting any arrangement that might place US nationals under the Court’s authority without US consent. During the Rome Conference, US objections focused especially on the Court’s jurisdictional triggers and on the possibility that nationals of non-States Parties could be prosecuted. 

This history is best understood through three related but distinct forms of exceptionalism, rooted in the belief that the US, by virtue of its distinctive historical development, political foundations, and position in global affairs, occupies a unique and ostensibly superior position among nations.

Engaged exceptionalism describes a policy of selective participation. Under this approach, the US may cooperate with, support, or remain diplomatically engaged with international criminal justice when doing so serves its interests, while preserving its freedom from the Court’s jurisdiction. The policy is “engaged” because it recognizes the value of the institution and may contribute to its work. It remains “exceptionalist” because the US seeks a special position for itself and its nationals.

The Clinton administration’s decision to sign the Rome Statute without intending to submit it for Senate ratification illustrates this ambivalence. The Obama administration continued a version of this approach. Its cooperation included expanding the War Crimes Rewards Program to help bring ICC suspects to justice and facilitating the transfer of ICC fugitive Bosco Ntaganda from the US Embassy in Kigali to The Hague. Constructive cooperation was therefore possible, but it should not be confused with genuine support for the Court’s authority over US nationals. In this sense, engaged exceptionalism was a strategy of insulation through selective engagement.

Disruptive exceptionalism describes another form of exceptionalism. Here, the US does not simply seek to remain outside the Court’s jurisdiction. It uses diplomatic pressure, public denunciation, visa restrictions, threats, or other measures to interfere with particular investigations, officials, or institutional decisions. The objective is to disrupt the Court’s work sufficiently to protect US interests, without necessarily seeking to eliminate the Court altogether.

The Bush administration’s pursuit of bilateral agreements under Article 98(2) of the Rome Statute provides an earlier example of this broader mode. These agreements sought commitments from other states not to surrender or transfer US nationals to the ICC without US consent. The US supported this campaign with substantial political and economic pressure, including measures authorized under the American Servicemembers’ Protection Act. Although the agreements were directed primarily at states rather than at the Court itself, they sought to constrain the cooperation on which the ICC’s jurisdiction and effectiveness depended. They therefore prefigured disruptive exceptionalism by moving beyond U.S. nonparticipation toward efforts to limit the Court’s reach through third states.

The Trump administration’s earlier conduct arguably also fits this category. In 2018, John Bolton denounced the ICC as illegitimate and threatened sanctions and criminal prosecutions against Court officials. In 2019, the US imposed visa restrictions on ICC personnel and warned of additional economic measures (the restrictions were later lifted in 2021 under President Biden). These actions were coercive and institutionally damaging, but they were principally directed at particular investigations and individuals.

Destructive exceptionalism goes further. I use the term to describe the deployment of exceptionalist ideology and material power not only to avoid accountability, but also to impair the institution through which accountability may be pursued. I see destructive exceptionalism as the use of a powerful state’s exceptionalist ideology and material leverage not only to exempt itself from international legal accountability, but also to obstruct, weaken, or disable the institutions through which accountability may be pursued. The concept has three core components. First, the powerful state claims exemption from international criminal accountability. Second, it uses coercive tools against the Court, its personnel, or those who cooperate with it. Third, the measures target, or foreseeably damage, the institutional conditions necessary for accountability, including funding, staffing, technology, financial transactions, evidence gathering, and cooperation.

The institutional sanctions therefore represent a significant change in the object of the US policy. Targeted sanctions against officials seek to punish or deter particular people. Institution-wide sanctions seek to constrain the Court as an organization and to make ordinary interactions with it legally and financially difficult, if not impossible. The proposed measures call the ICC’s operational capacity into question, including its ability to secure resources and cooperation for investigations worldwide.

“Disruptive exceptionalism” is a useful term for the period in which the US used threats and targeted sanctions to obstruct ICC investigations. It captures the means and avoids overstating the consequences. But it is too neutral for the current moment. Disruption can be temporary, limited, or even productive. The word does not by itself communicate the stakes for victims, Court personnel, civil society, or other states. “Destructive exceptionalism”, however, captures the orientation and foreseeable effect of a policy that treats the Court’s institutional capacity as an object of coercion. It does not require the claim that the ICC will be destroyed (though the Trump administration has made clear their intention to destroy the Court here, here, and here). Measures can be destructive when they are designed to disable and destroy institutional functions.

Beyond a Bilateral Dispute

The consequences of destructive exceptionalism extend beyond the US and the ICC. My earlier analysis of the US-ICC relationship emphasized that US exceptionalism is not only a legal or policy position. It is also a cultural and ideological formation, sustained through narratives of sovereignty, national identity, and special responsibility in world affairs. It operates outwardly by pressuring international actors and inwardly by reaffirming the US as a nation that should not bend to foreign authority. Under Trump, this exceptionalism has become more openly coercive. Threats, sanctions, and public attacks on the Court are mechanisms through which this power is exercised.

While the US is not required to ratify the Rome Statute, it is responsible for the consequences of using its power to disable international accountability. Engaged exceptionalism preserved US distance while leaving space for the Court to function. Disruptive exceptionalism narrowed that space through intimidation and targeted obstruction. Destructive exceptionalism threatens to remove it altogether. The latest developments demonstrate that the US is prepared to back up its threats with destructive (rather than just disruptive) action. These actions must be named and resisted.

This places a particular responsibility on those states that have long presented themselves as defenders of the Court and the international legal order on which it depends. For the European Union and its Member States, expressions of support for the ICC are no longer enough. If destructive exceptionalism works by making cooperation with the Court increasingly costly, then defending the Court requires states to reduce those costs and protect the institutions, individuals, and organizations that enable it to function. That means standing firm against efforts to isolate the Court, protecting its officials and those who cooperate with it, and using available legal, diplomatic, financial, and political tools to preserve its ability to operate independently.

There are encouraging signs that some states recognize what is at stake. At the 81^st Session of the UN General Assembly, Dutch Prime Minister Rob Jetten offered one of the clearest responses, warning that attempts to undermine the ICC threaten the international legal order as a whole and declaring: “Hands off the ICC.” EU Council President António Costa similarly stated that threats and attacks against the Court, its officials, and its staff are unacceptable and pledged that the EU would defend the Court’s independence, integrity, and ability to exercise its mandate. Spanish Prime Minister Pedro Sánchez called for the ICC to be strengthened, while Japanese Prime Minister Sanae Takaichi reaffirmed Japan’s support for the Court. Such statements matter, particularly when made collectively and at the highest political level. But the durability of that support will ultimately depend on whether it is translated into practical protection.

Some of that work has already begun. The Court has sought to reduce its vulnerability to US sanctions by moving away from US-based technology and financial-service providers, including replacing Microsoft software with a European alternative. States and the EU can reinforce these efforts by developing resilient European financial and digital infrastructure for the Court, protecting companies and organizations that continue to cooperate with it, and considering measures such as extending the EU Blocking Statute to cover ICC-related sanctions. As host state, the Netherlands has an especially important role in ensuring the Court can continue to operate, protect witnesses, move personnel, and maintain secure facilities. These may sound like technical questions of banking, software, insurance, visas, and service provision. There are increasingly questions about whether an international court can function at all when a powerful state decides to make cooperation with it costly.

The test for the ICC’s supporters is whether they are prepared to build the legal, financial, technological, and diplomatic resilience necessary to sustain it under pressure. If the international legal order is to constrain power rather than merely reflect it, the institutions created to enforce that order must be capable of withstanding destructive exceptionalism, particularly when defending them carries a cost. The future and credibility of the Rome Statute system depends on it.