I am a human rights defender. My parents taught me early on to stand up for social justice and equality — especially when it’s difficult and challenging to do so.
When violence exploded in Darfur, Sudan in 2003, I couldn’t be silent. This was a genocide happening on my watch despite loud global affirmations of “never again” after the Holocaust. I formed a human rights organization, World Without Genocide, with a mission to try to protect innocent people from hate, prevent discrimination and violence, support the prosecution of perpetrators of mass atrocities and remember the people and communities affected by violence. Our goal is education and advocacy for genocide prevention. We have Special Consultative Status to the United Nations.
This work consumes my life and involves me at local, national and international levels.
This month I attended the Assembly of States Parties of the International Criminal Court, the ICC.
There are two permanent courts in the world with jurisdiction to consider cases involving genocide. The courts are both located in The Hague, Netherlands, and they have similar names.
The International Court of Justice is administered by the U.N. Its judges hear cases between nations (“states,” in global parlance) and provide legal advice to the U.N. upon request.
The International Criminal Court (ICC, or the Court) prosecutes highest-ranking individuals for genocide, war crimes, crimes against humanity, and the crime of aggression occurring in almost any country. These are the four most heinous crimes in the world. The ICC is an independent court, administered by 124 states that are parties to the Rome Statute, the convention that defines the crimes and the operating mechanisms of the court.
I believe deeply in the mission of the ICC. It is a court of last resort, established to address these crimes when a state is either unable or unwilling to handle the cases in their own domestic courts. The existence of the ICC means that perpetrators of mass atrocities cannot have impunity for efforts to exterminate innocent people; there is a permanent mechanism for accountability of those who are accused; and most significantly, there is a forum for victims to pursue justice.
The ICC was the dream of jurists from the Nuremberg trials, the post-World War II international tribunal. The Nuremberg trials held the highest-ranking Nazi leaders and collaborators accountable for murders and enslavement of millions of innocent people. The idea of a permanent global court to address massive human rights abuses guided the formation of the ICC, which came into operation in 2002.
I have attended the annual Assembly of State Parties for five years. The meeting is open not only to the leaders of the 124 states parties, but also to NGOs (non-governmental organizations) from throughout the world. I attend with a delegation from World Without Genocide.
Part of the Assembly of State Parties agenda is routine: establishing budgets, electing judges, creating new administrative procedures, and reviewing cases currently under investigation, which span crisis situations on four continents. But each year’s agenda is also unique, focusing on urgent new considerations.
Last year the chief prosecutor released new policies for addressing crimes committed against children and crimes of a sexual or gendered nature against women, highlighting best practices to safeguard the rights of victims and witnesses. This year a special policy was introduced for crimes of slavery, which includes trafficking in persons and forced marriage.
The Chief Prosecutor, Karim Khan of the United Kingdom, opened his remarks by stating that the Court was established to speak “for the lost, the invisible, the persecuted in Ukraine, Darfur, Sudan, Gaza.” He called today’s world “a pandemic of inhumanity.”
This year’s meeting was unlike any other, however. There was an elephant in the room, and it was the specter of a threat being posed by the United States, which is not a state party to the ICC.
On the first morning of the week-long session, President of the Court Tomoko Akane of Japan said, very directly, that the Court must be a safe place while realizing its aspirations. She spoke specifically about threats “by a permanent member of the Security Council” — the United Nations Security Council — by which the hundreds of people in the huge auditorium knew that she meant the U.S. The Court is threatened, she continued, “as if it were a terrorist organization. If the Court collapses, there will be no recourse for victims; no offices elsewhere; no justice, and ongoing impunity.”
Why is the U.S. threatening the ICC?
On May 20, 2024, the chief prosecutor of the ICC asked the Court’s Pre-Trial Chamber to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, along with a warrant for the leader of Hamas, on charges of war crimes and crimes against humanity. The Court issued those warrants on Nov. 21, 2024.
The U.S. provides Israel with economic, political, and military support because of Israel’s position as a pro-U.S. bulwark in the Middle East. The U.S. has used its United Nations Security Council veto power 42 times to defeat resolutions condemning Israel, out of a total of 83 times in which the U.S. veto has ever been used.
There has been a strong call from the U.S. public for President Biden to end military support to Israel for the war in Gaza and to allow greater access for humanitarian aid. Simultaneously, however, the issuance of the arrest warrants prompted U.S. congressional pushback from some supporters of Israel.
In June, after the ICC Prosecutor requested the warrants, the U.S. House of Representatives passed H.R. 8282 – Illegitimate Court Counteraction Act, which would place sanctions on the court, on individuals, and on anyone supporting the activities of the court. This would jeopardize the safety of witnesses and victims, silence human rights members of civil society, and imperil the overall functioning of the court.
The bill did not make its way to the U.S. Senate. If it had, and if it had passed, President Biden promised to veto it.
What happens next?
There are three possible scenarios: 1) The Senate could take up the bill in the lame-duck session; 2) The bill could go forward in the 2025 session of Congress; or 3) The new administration could issue an executive order, which the Trump administration did in its previous term but on more limited grounds.
The Court issued more arrest warrants in 2024 than at any other time in its history, including four warrants for accused perpetrators of war crimes in Russia, among them President Vladmir Putin. None of those other warrants triggered U.S. congressional threats to the Court.
There is global concern over potential U.S. action. The Court’s mission to affirm peace, justice, security, and equality for all must be protected.
Ellen J. Kennedy is the founder and executive director of World Without Genocide. She holds a BA degree from the University of Michigan and two Ph.D. degrees from the University of Minnesota. She is an adjunct professor of law at Mitchell Hamline School of Law, St. Paul, and a representative to the United Nations Department of Global Communication. She has received the FBI Director’s Community Leadership Award; the Ramsey County Bar Association’s Liberty Bell Award; the Outstanding Citizen Award from the Anne Frank Center in New York; and the Change-Maker Award from the Minnesota Women’s Press.
World Without Genocide will hold a public webinar, “The International Criminal Court: Cases and Policies,” on Tuesday, January 28, 7:00 -8:30 pm, which includes continuing education credits for Minnesota lawyers, teachers, nurses, and social workers. Register at www.worldwithoutgenocide.org/briefing.
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