Dutch foreign minister declines to deny talks are under way on curbing ICC powers - Middle East Eye

Dutch Foreign Minister Tom Berendsen has declined to rule out the suggestion that discussions are taking place over sweeping restrictions on the International Criminal Court (ICC), following a report that the Netherlands is negotiating with Washington over changes that could severely undermine the court's powers.

Questioned in parliament on Wednesday, Berendsen said diplomatic discussions were taking place but he would not specify whether proposals to shield heads of state and restrict the court's jurisdiction over nationals of non-member states were under consideration.

The exchange followed a report by Dutch rights organisation The Rights Forum, citing anonymous diplomatic sources in New York, that the Netherlands was "negotiating" with the US changes to the court's founding treaty in response to US sanctions on the court and its top officials.

Middle East Eye has previously reported similar US demands.

In December 2025, MEE exclusively revealed that Washington had pressed for an end to the Palestine and Afghanistan investigations and treaty changes preventing prosecutions of nationals of non-member countries, in return for lifting sanctions.

Athough the US is not a member state of the ICC, its sanctions and recent threats to "dismantle" the court are prompted mainly by Washington's opposition to the prosecution of Israeli leaders and the court's ability to also prosecute US officials for crimes committed on the territory of member states. 

Hanneke van der Werf MP, from the Democrats 66 party, asked on Wednesday whether, as reported by the Rights Forum this week, discussions with the US included immunity for heads of state and government, excluding nationals of countries outside the court's founding treaty from its jurisdiction, and weakening its ability to intervene when national authorities fail to prosecute.

Berendsen's answers did not confirm the reported proposals, but nor did they answer whether the government would reject them. 

He told parliament he would send MPs a letter next week setting out the Netherlands’ position for the upcoming Assembly of States Parties (ASP), including its diplomatic approach to addressing US sanctions against the court.

"Discussions are currently taking place about the diplomatic track being pursued," Berendsen said.

"I cannot anticipate which subjects are or are not on the table."

He added that the Netherlands could not decide the matter alone, because more than 120 member states would potentially have to reach an agreement with the US.

"So the minister is not denying that it is true," Van der Werf responded.

"All kinds of discussions are taking place, but that does not mean that this is the position the Netherlands is taking," Berendsen said.

ICC member states are scheduled to meet in The Hague from 30 November to 7 December, after the session was relocated from New York because US sanctions and visa restrictions threatened participation.

Any agreement to rewrite the court's core powers would face substantial legal hurdles.

Under the Rome Statute’s general amendment procedure, adoption requires consensus or a two-thirds majority, followed by ratification by seven-eighths of member states before entry into force.

Washington imposed sanctions on the ICC as an institution on 9 October, escalating a campaign that had already targeted most of the court's judges and prosecutors over the court's Palestine and Afghanistan investigations. 

The sanctions on court officials have been imposed since February last year, in the aftermath of the arrest warrants issued by the court for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant in November 2024 over alleged war crimes and crimes against humanity in Gaza.

The sanctions on court staff have been described as tantamount to a “financial death penalty” as the affected officials have been cut off from basic financial services. 

With respect to the institutional sanctions, however, Washington has granted a six-month exemption until 7 April 2027 for certain operational transactions to allow time for negotiations.

When they come into effect, the measures could prevent the court from conducting transactions in US dollars, effectively cutting it off from large parts of the international financial system and potentially crippling its operations.

Banks tend to over-comply with sanctions because of their dependence on that system.

In its response to the Rights Forum, the Dutch foreign ministry said no concrete proposals were currently before the ASP, the court’s governing body.

It said it was "exploring the scope" for dialogue with non-state parties, consistently with international law and with respect for the court’s independence and impartiality.

Sergey Vasiliev, a Netherlands-based professor of international law, said any compromises such as those reported by The Rights Forum would amount to a "nightmare scenario" that academics and experts have warned against for months. 

"They would turn the Court into an obedient toothless lapdog," he told MEE. "I cannot believe that the Netherlands has ever seriously contemplated—or would ever consider—accepting such compromises."  

Vasiliev said the heated exchange on Wednesday between lawmakers and the foreign minister reveals the "awkward position" of the Dutch government as both the host of the court that is expected to protect it, and its decision to embrace the Trump administration's six-month "room for diplomacy." 

"MPs challenged, pressured, and implored the minister, but he could not bring himself to reaffirm the Dutch commitment to the ICC’s cornerstone principles and unequivocally reject the absurd proposals for fear of provoking a backlash," said Vasiliev. 

Rights groups and court officials have repeatedly -albeit unsuccessfully- urged the EU to activate its Blocking Statute, a legal mechanism which aims to protect EU companies and individuals from the effects of extraterritorial sanctions imposed by third countries.

If activated, the statute would reassure EU-based service providers that their transactions with the ICC are protected. It essentially prohibits them from complying with foreign laws that could harm their business operations within the EU.

Dutch and European leaders have pledged support but remain cautious about invoking the mechanism. Prime Minister Rob Jetten promised last month to protect the court “brick by brick”, while Berendsen has described the Blocking Statute as a drastic measure that could be used only once.

EU leaders subsequently called for measures to help European companies continue serving the court.

EU foreign policy chief Kaja Kallas said on 20 October that activating the statute remained an option, but required careful preparation.

She also urged companies against over-compliance with US restrictions during the six-month grace period.

Established in 2002, the ICC is the world’s only permanent international criminal court with the mandate to investigate and prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression.

The court currently has over a dozen active investigations, including the situations in Darfur, Libya, Myanmar and Ukraine.