Front Burner - Is the International Criminal Court’s future in peril?

Episode Date: August 29, 2025

Last week, the U.S. released another round of sanctions against officials at the International Criminal Court, including a Canadian judge. They’re the latest in a string of attacks from the Trump administration this year, after the ICC issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Defence Minister Yoav Gallant for alleged war crimes and crimes against humanity in Gaza.The sanctions come at a difficult time for the ICC as it operates without a chief prosecutor and is under increasing pressure to address the ongoing atrocities in Gaza. But what is really under the ICC’s jurisdiction and is it equipped to hold some of the most powerful leaders in the world to account? Kenneth Roth is the former director of Human Rights Watch and author of “Righting Wrongs: Three Decades on the Frontlines of Battling Abusive Governments”.He’s here to parse through the Trump administration’s sanctions, and the history and efficacy of the International Criminal Court.For transcripts of Front Burner, please visit: https://www.cbc.ca/radio/frontburner/transcripts

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Certain conditions apply. This is a CBC podcast. Hi there, I'm Jamie Poisson. Last week, the U.S. imposed sanctions on four international criminal court officials, including a Canadian judge. These sanctions were just the latest in a string of attacks against the ICC from the Trump administration. including sanctions on the court's chief prosecutor. It was sparked by the ICC's decision late last year to issue an arrest warrant for Israeli Prime Minister Benjamin Netanyahu

and former Israeli defense minister Yoav Golan for alleged war crimes and crimes against humanity in Gaza. Trump's executive order authorizing sanctions on the ICC back in February said that the court, quote, engaged in illegitimate and baseless actions targeting America and our close ally, Israel. Trump's opposition to the ICC isn't new. Here he is at the U.N. during his first term.

As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority. So it wasn't a surprise when Netanyahu was able to visit Washington unscathed in July or when Russian President Vladimir Putin was able to attend a summit in Alaska last month. Despite also having an ICC arrest warrant out for him over accusations of war crimes, in Ukraine. Today on the show, Kenneth Roth is with me. Kenneth is the former director of Human Rights Watch, and he has a new book out right now called Writing Wrongs,

three decades on the front lines of battling abusive governments. And we're going to discuss this latest onslaught against the ICC, its history and usefulness, and whether its future is in peril. Ken, hi, thank you so much for coming on to Front Burner. It's a pleasure to have you. Thanks for having me. My pleasure to be here. People might not realize how relatively new the International Criminal Court is

in 1998, 120 countries voted in favor of the Rome Statute. This is the agreement that established the court. It came into force in just 2002. And just to clarify for our listeners, it is different from the International Court of Justice, which has been around since 1945. five. And why was there such a push at the time from the international community to create the ICC? Why did they feel like they needed it? Well, the International Court of Justice, sometimes called the World Court, is a civil tribunal that is to say it resolves disputes between states

and it also can issue advisory opinions upon request by the UN General Assembly. But it is not there for prosecutions. There had been prior international tribunals for the Yugoslav war for the Rwandan genocide, but there was nothing with potentially global scope. And that was the impetus behind the international criminal court. They both are based in the Hague just to confuse people, but it's the international criminal court, the ICC, that is the only one able to prosecute individuals for genocide or crimes, crimes against humanity, aggression, torture, crimes of that sort. Yeah. And just for clarity, it's the ICJ, the other court that is considering the case right now brought forward by South Africa on whether or not Israel has committed

genocide, right? That's correct. And that is a civil case. So in other words, if South Africa prevails, the court will make a finding that the government of Israel has committed genocide. but it is not judging any particular individual. According to a 1948 convention, genocide is a crime committed with the intent to destroy a national, ethnic, racial, or religious group in whole or in part. That, South Africa says, is what Israel is doing in Gaza. And for any individual to be prosecuted for genocide, that would probably take the International Criminal Court.

And also, just for clarity here, they have charged Benjamin Netanyi, Yahoo and Yoav Ghalant for war crimes in Gaza. Mr. Netanyahu called it a black day for nations. This is an anti-Semitic measure that has one goal to deter us from exercising our natural right to defend ourselves against our enemies who rise up to destroy us. They've also charged three Hamas leaders, all of whom have been killed since. The head of the group, Yehya Sinwar, the head of the Political Bureau, Ismail Haniyah, and the head of Hamas's militant, the Al-Qasun Brigades, Mohamed Dave. What is the basis of the charges against Netanyahu and Galant?

The allegation made by the ICC is that the Israeli government, you know, led by Prime Minister Netanyahu, and at that point directed at the military level by Taland, that they were blocking food, blocking hospital supplies, blocking other necessities. And this is, in essence, is, you know, is behind the starvation that we're seeing today, that many people are saying amounts to genocide. But the ICC did not charge genocide. So there are currently 125 member states that are part of the ICC. Canada is one of them.

And what is expected of these member states? Well, the most important thing, I suppose, is that if somebody is charged by the ICC, if there's an arrest warrant for them, then those 125 governments have a duty to arrest that person and send them to the Hague. So you opened up noting that Netanyahu could arrive in Washington, Putin could arrive in Anchorage without being arrested. That's because the United States is not a party to the Rome statute. It never joined the court.

But were they to show up in Canada, the Canadian government would be obliged to arrest them and send them to the Hague. Yeah, and I know... I'm not sure if our current Prime Minister, Mark Carney, has addressed this directly, but certainly our former Prime Minister, Justin Trudeau, did say that they would abide by those obligations when asked about Netanyahu after he was charged. We are one of the founding members of the International Criminal Court and International Court of Justice. We stand up for international law, and we will abide by all the regulations,

and rulings of the international courts. Can you tell me a bit more about why the United States didn't end up becoming a member of the ICC? This goes back to 1998, to the negotiations of the Rome Treaty. And I was there at the time. I was very involved. Canada, I should say, was a leader in those negotiations. And indeed, they were overseen by Philippe Kirsch,

who at the time was the legal advisor for the Canadian Foreign Ministry. So Canada played a central role. And the United States was pushing one way or the other to ensure that the ICC could never prosecute an American. And, you know, that was not my conception of international justice. That was not my organization, Human Rights Watch's conception. And so we helped to organize a coalition of about 60 governments, including Canada, that essentially stood up for the idea of universal justice. They refused two continents in particular the idea that a non-member with impunity could commit a war crime or another atrocity on the territory of a member state.

That territorial jurisdiction ended up being how Putin got charged for crimes in Ukraine, because Ukraine is a member. It's how Netanyahu got charged for crimes in Gaza because Palestine is a member. The U.S. hated that idea. And you noted that in Rome, 120 governments voted for the court. Only seven governments voted against the court, the U.S. being among them, because the U.S. didn't accept that it was unable to exempt Americans definitively from the court's jurisdiction. And probably worth noting countries like India, China, Russia, also not part of the ICC. That's correct. But it is worth noting that, I mean, really all of Europe and governments around the world, I think the largest number of governments are in Africa, have joined the court really because they see it as a safeguard for some kind of domestic tyrant who is able to compromise the judicial system, commit so many atrocities that the courts don't dare go after him.

And in that case, the ICC is always there. It's impossible to kind of threaten the prosecutor and the judges in the Hague people thought. And therefore, there is always this recourse to international justice when domestic justice failed. We are gathered here today to celebrate life's big milestones. Do you promise to stand together through home purchases, auto upgrades, and surprise dents and dings? We do. To embrace life's big moments for any adorable co-drivers down the road. We do. Then with the caring support of Dejard's.

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has the relationship between the United States and the ICC evolved or ebbed and flowed from presidency to presidency? Has it changed at all throughout the years? It's changed a lot. The George W. Bush administration came into, office and pushed through Congress something known as the American Service Members Protection Act. We dubbed it the Hague Invasion Act because it literally authorized military force to free somebody who might have been in custody by the ICC and the Hague. But even the Bush administration ended up allowing the UN Security Council to refer the

situation in Darfur to the ICC because Bush's Christian evangelical base in the United States empathized with what it saw as largely Christian victims of the Janjaweed attacking in Darfur. My administration called this a genocide. Once you label a genocide, you obviously have to do something about it. The next administration under Obama actually voted for sending the situation in Libya to the ICC. So there was an evolution. Just four days after the UN Security Council voted unanimously to refer Colonel Gaddafi and his henchmen to the ICC, its prosecutor. It had pledged that anyone found to have committed crimes against humanity in Libya would be held to account. The violence must stop. Ramar Gaddafi has lost legitimacy to lead and he must leave.

Those who perpetrate violence against the Libyan people will be held accountable. Trump came in the first time and already then imposed sanctions on the prior prosecutor of Batu Bensuta in one of her deputies because she opened an investigation in Afghanistan that theoretically could have implicated the Bush-era torturers, but never did. But that was enough for Trump to impose sanctions there. Biden lifted those sanctions, and when the court charged Putin,

Biden said those charges were justified. Well, I think it justified it, but the question is not recognized internationally by us either. And what's even more surprising is that Lindsay Graham, the South Carolina Republican senator, who has really been one of the leaders of the opposition to the ICC, he came out and said, this is a new world. We like these charges against Putin, and he pushed through the Senate a unanimous resolution of support for the ICC. So there was a radical shift until Netanyahu was charged. The court is acting against a sovereign, independent,

judicially robust democracy called Israel, using a legal theory that means we're next. And at that point, Biden said it was outrageous. Let me be clear. We reject the ICC's application for arrest warrants against Israeli media. And Trump now has actually imposed sanctions on the new prosecutor, two of the prosecutor's deputies, and a number of judges because of those charges. In an executive order sanctioning the court, he said it had a beautiful. used its power by issuing arrest warrants for the Israeli Prime Minister, Benjamin Netanyahu,

and his former defense minister, Yuav Gallant. Can you just take me through that onslaught a little bit more here? You know, what exactly, what are these sanctions? What are the effect of these sanctions? The sanctions have two components to them. One is that the people identified, targeted, cannot travel to the United States. That's, you know, less urgent. But the thing that matters a lot is that they are blocked from the international financial system.

And so they can't access to their bank accounts. They can't use their credit cards. They're living in this financial no-man's land. And it's really only if European governments kind of work out alternative arrangements that they're able to just feed themselves day to day. So it is a real threat to these individuals and an effort to intimidate judicial officials and prosecutorial officials for just carrying out their duties. as ICC judges or prosecutors. And just, can you tell me a little bit more about the Canadian judge

who has been sanctioned as well, Kimberly Palsh, right? And she actually has not been targeted by this administration because of charges against Israel, but for authorizing an investigation into the role of the U.S. military played in alleged war crimes

and crimes against humanity in Afghanistan, right? Well, it's worth noting that this happened some time ago. And what she did, along with two other judges, was authorize the prosecutor to open an investigation. And at that stage, nobody was saying that they were going to target the U.S. torturers. And indeed, since then, Kareem Khan has basically said, we're not going to prioritize that stuff.

We're going to focus on newer abuses, you know, mainly by the Taliban. And indeed, he has now requested arrest warrants for the senior Taliban officials. So there is, you know, zero chance of an American being prosecuted for what happened now, you know, more than 20 years ago in Afghanistan. Nonetheless, Trump is, you know, so distasteful with even this remote theoretical possibility that he has imposed sanctions. These sanctions, what kind of threat do they pose to the court itself? Well, it makes life difficult for the court. You know, Americans have to wonder whether they can even show up at the court. to offer their assistance. It's meant to kill the court. I don't think it's going to have that

effect, in part because most governments are outraged by this very blatant effort to manipulate an independent institution of justice. If you look at Article 70 of the Rome Treaty, it actually criminalizes this kind of conduct. It makes it a crime to intimidate or threaten somebody because of their official duties at the court. And so, I don't think Trump is going to be prosecutor tomorrow for this, but it just underscores just how utterly outrageous what he is doing is to this independent institution. I think it's probably also worth us talking about the most recent chief prosecutor. We mentioned him before Kareem Kahn.

He has been sanctioned by the U. but he also stepped aside in May because of allegations of sexual misconduct, which are currently under investigation. And what has being a headless organization meant for the ICC's current ability to do its work? This is a horrible time for the prosecutor's office to be helpless. And I really wish that the charges against Khan would be resolved quickly one way or the other, because to have nobody in charge is hurting the coin right now. He has two. He has two. deputies who have taken over, but they now have been sanctioned by Trump as well. And I don't think that they have the stature to take some of the difficult decisions that are pending before the court.

For example, it appears that the court is very close to seeking charges against the two far-right Israeli ministers, Smotlich and Ben Giver, for their role with the West Bank settlements and settler violence. But this is obviously going to be a controversial. thing if it happens, and it doesn't seem that the two deputies feel capable or confident enough to go forward. The charges against Netanyahu and Gallant are simply for the starvation and deprivation strategy, but, you know, nothing about the massive 2,000-pound bombs that decimated neighborhoods, nothing about the shooting of starving Palestinian civilians who are going

to these aid distribution points. I mean, there are many, many things that are just waiting for prosecution. on the Ukrainian side, Putin has been charged for kidnapping Ukrainian children, but not at all for the bombing of Ukrainian civilians. Four of his generals have faced his charges, but Putin clearly is the commander-in-chief, who clearly does have command responsibility, nothing. So these are the kinds of things that you need a real prosecutor with courage to proceed with. Khan was that person.

I mean, I've been actually impressed by what Khan has been able to do, but he has. has rightfully taken a leave while these sexual charges against him are investigated. And I just hope it's resolved one way or the other quickly. Right. I mean, these serious charges aside, I do know that he was applauded for his work bringing what many people thought was balanced back to the court, as was his predecessor. But I remember in 2017, the African Union encouraged his members to leave the ICC accusing the court of targeting Africans overwhelmingly, right? That's correct. I mean, during the first prosecutor's tenure, an Argentinian by the name of Luis Marino Ocampo, only people from sub-Saharan Africa were charged. Now, there actually were reasons for that. This was the courts in early days. It was being attacked by the Bush administration. And so Ocampo went with cases that either had been referred by the UN Security Council or had been referred by individual governments. And those were all in sub-Saharan Africa. So he was

went with the easier cases, but then they had a geographic focus. Now, Fatou Bensuda, his successor, who was Gambian, who is African, she then opened a bunch of investigations outside of sub-Saharan Africa. But they didn't come to fruition in terms of actual charges until Kareem Khan took over. And he initially charged Russians for crimes in the state of Georgia. But since then, he's broadened substantially. I mean, not only the cases in Palestine involving Hamas and Israeli officials, not only the cases in Ukraine involving various Russian officials, but also in the Philippines, where former President Duterte was not only charged, but actually surrendered to the Hague and is now in custody awaited in trial.

Similarly, charges are being sought against the Myanmar-hunted chief for atrocities against Rohingya, against the Taliban head for the persecution of women and girls. So these are very important steps forward. And I think that, you know, the days in which people said, oh, the I see only focuses on Africans is just no operative credible. So is it fair for me to say that the court is in many ways paralyzed right now? I do think it's pretty stuck. And it has done a lot. There are many cases that are pending that are working the way through the system.

Some trials are taking place. But in terms of these new charges based on ongoing investigations, it's very difficult for them to come to fruition without a chief prosecutor in charge. And the chief prosecutor is on leave. Right. And just to be clear, you know, these prosecutions, Putin and Netanyahu, it would have been very difficult for them to bring these prosecution forward. forward anyways, right? Well, I mean, there are two things that one has to look at. I mean, first, as a prosecutor, you ask, well, when do I have enough evidence to charge? I say this is a former U.S. federal prosecutor myself.

And I've spoken with Green Khan about this, and he, I think, is appropriately conservative. He says, I'm not going to bring charges until I know I have enough evidence to prevail at trial. I know what the purported defense is, and I can pursue that defense. That's the rightly to proceed. You need a very strong end of industry base. Now, the second issue is, you know, once you charge somebody, how do you get them arrested? The ICC obviously doesn't have an international police force, but it's very difficult to avoid justice forever.

You basically have to be a president or prime minister for life. And we've had examples where people failed in that endeavor. If you look at, you know, former Serbian president Slobid and Milosevic, he was president at the time when he was charged by another international tribunal. he thought he was home free. He was going to come get him. But he faked an electoral win. There was a popular revolt. He had to step down. The new government came in, and in order to get sanctions lifted, they surrendered him to the Hague. It's easy to imagine something like that happening, you know, in Russia, in Israel. It happened just recently in the Philippines, where former President Duterte thought he had secured his impunity by getting his daughter to be vice president. But then she had a falling out with the president, with Marcos Jr. and he sent her father, sent Duterte, to the headache where he's in custody today. You know, there are precedents for this effort to evade justice forever, not working, and we just have to hope that that remains true for these powerful individuals like Putin or Netanyahu. Yeah, I imagine some people are listening to you say that right now,

and they might be thinking, these guys are too big, too well-allied, that it just doesn't sound likely. I mean, if you take somebody like Putin, it's not impossible to imagine a so-called color revolution. I mean, this is his nightmare. He's always worried about this. There's some kind of popular revolt, and he's forced to step down. A new Russian government comes in.

It has massive sanctions against it because of Putin's invasion of Ukraine, and it wants those sanctions lifted. And the international community will say, fine, you know, we could lift sanctions, but one of the conditions is you surrender to Putin. It's not impossible to imagine that. or Israel, you know, which is increasingly becoming a pariah state because of what I think is rightfully seen as a genocide in Gaza. At some point, Netanyahu's going to have to step down. Indeed, his hold on power today is pretty precarious. A new government could come in and wanting

to redeem Israel's pariah status, recognize that one way to do that is to hand Netanyahu to the Hague for trial. Indeed, there is precedent for people, you know, heads of state presidents who are charged showing up in the Hague voluntarily. This is what former Kenyan President Kenyatta did. He was charged by the court. He flew to the Hague himself, voluntarily. He showed up and said, I'll face these charges. They obviously gave him bail because he showed up voluntarily, went back to Nairobi, continued his president, and he ultimately defeated those charters. I would say unfairly, a lot of the witnesses were killed. But he showed that there is another way to do this. You don't have to run away from justice. You can face justice if

you think you've got a case to do that with. Even if they can't get these guys to the Hague, What value do you think there is in just having the ICC lay charges, right? And that information be in the public consciousness. I think it's incredibly important. I mean, if you look at the lengths to which governments go to avoid, you know, simply condemnation from something like the UN Human Rights Council in Geneva or the UN General Assembly or the UN Security Council in New York, you know, just being condemned by an international body of that sort is horrible. Governance do everything they can to avoid it.

With the ICC, you not only have a condemnation, you have a declaration that this is presumptively criminal. It's that much worse. So I think that that stigma is real and it's important even if the suspect cannot ultimately be brought to trial. I wonder if I could push back on it a little bit for you right now. Maybe in the context of what we're seeing in Gaza right now, a famine has been declared. We are literally watching through smartphone footage. people who cannot leave starving children. The aid is lined up and it cannot get in.

Just this week, 21 people were killed in an attack on Nasmer Hospital, including five journalists. And so we have institutions like the ICC charging the Prime Minister with war crimes. We have the United Nations, the Security Council voting yesterday, saying that this is a man-made famine, of course, the United States, did not vote with the rest of the Security Council. but, you know, we have the ICJ pursuing this genocide case, and yet the famine continues and the situation gets worse, right, is getting worse, it's escalating. And I'm just curious how someone like you is thinking about the efficacy of all of these institutions at the moment to prevent what we are seeing with our own eyes right now. The situation in Gaza today is incredibly painful and frustrating. There's no question about that. And I think we can look at the

international response in two ways. I mean, one is this broad condemnation by so many governments by virtually every international institution shows that we are not normalizing genocide. People are horrified what's going on. So when I'm asked, you know, does this mean that international law is meaningless? I mean, no, this is a reaffirmation of international law at the level of condemnation. But is that changing the reality on the ground? Not yet. And this is the frustrating place. So then what's it all for? What does it matter? Well, it matters, I mean, I think foremost because the one person today who could stop the killing is Donald Trump.

If he were to insist on an end to the genocide as a condition for the United States continuing its $3.8 billion in annual military assistance and its endless arms sales, Netanyahu would have to end it tomorrow. So Trump has the capacity to turn it on and off. Where I think the global reaction matters is its influence. ultimately public opinion in the United States, where even mega-Republicans, not to mention independence and Democrats and others, are increasingly outraged by what Israel is doing. Donald Trump is not indifferent to public opinion. He cares about how he is seeing. He's already distanced himself somewhat from Netanyahu, including twice insisting on temporary ceasefires. He's refuted Netanyahu's false claim that there is no starvation. We need to get him to take the next step

and to conditioning the U.S. military aid. I think that this global condemnation is helpful in nudging Trump in that direction. And that's what the people of Gaza are going to need to see an end to this horror. Kenneth Roth, thank you very much for this. Thank you very much for having me. All right, that's all for today. I'm Jamie Poisson. Thank you so much for listening.

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