Netherlands denies active talks with US over curbing ICC powers to lift sanctions - Middle East Eye

The Netherlands is not currently in active negotiations with the US over amendments to the Rome Statute or any response to the sanctions imposed on the International Criminal Court (ICC), a spokesperson told Middle East Eye.

The official statement from the Dutch government on Friday comes after vague comments from Foreign Minister Tom Berendsen on whether US demands to shield heads of state and restrict the court's jurisdiction over nationals of non-member states were under consideration.

Berendsen's answers did not confirm the reported proposals to parliament, nor did he say whether the government would reject them. 

The question by Hanneke van der Werf MP, from the Democrats 66 party, concerned a report by the Rights Forum on alleged Dutch discussions with the US regarding possible amendments to the ICC's founding treaty.

The proposed amendments 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.

A foreign ministry spokesperson, who preferred not to be named, said the report was not accurate.

"The article published by The Rights Forum does not reflect the Netherlands’ position. The article also claims that various issues are currently under active negotiation. That is not the case," they said in an emailed statement to MEE.

The spokesperson, however, referred to the closing statement of last year's Assembly of States Parties, the court's governing body, when it was decided "by consensus" that member states should engage in dialogue with non-state parties. 

"We are currently exploring the scope for such a dialogue," said the spokesperson as ICC member states are scheduled to meet in The Hague from 30 November to 7 December.

The session was relocated from New York because US sanctions and visa restrictions threatened participants.

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.

"The dialogue between the US and the States Parties to the Rome Statute - who will ultimately decide on this together - has yet to take shape," the spokesperson added.

"At this moment, there are no direct negotiations with the US, nor are there any concrete proposals before the Assembly of States Parties that address the US's concerns yet."

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.

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. 

In December, 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.

A diplomat speaking to MEE on the sidelines of the assembly said any such changes would undermine the court.

"There is a growing realisation that any amendment to the Rome Statute intended to appease those calling for sanctions would do more to destroy the court than the sanctions themselves,” the diplomat said.

"Many states believe there would be little reason to remain within the court if that happens."

Sergey Vasiliev, a Netherlands-based professor of international law, said any changes to the Rome Statute in line with US demands 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.