Dutch government clarifies status of ICC discussions with Washington

The Netherlands has officially denied that it is currently engaged in active negotiations with the United States regarding changes to the Rome Statute or specific responses to the sanctions imposed on the International Criminal Court. A spokesperson for the Dutch government provided this clarification on Friday, aiming to settle confusion following ambiguous remarks made by Foreign Minister Tom Berendsen.

The official statement came after Berendsen addressed parliament regarding reported US demands. These demands include shielding heads of state from prosecution and restricting the court's jurisdiction over nationals of countries that are not members of the ICC. While Berendsen did not confirm that these proposals were under active consideration, he also did not explicitly state that the government would reject them. The inquiry originated from Hanneke van der Werf, a member of parliament from the Democrats 66 party, who referenced a report by The Rights Forum alleging Dutch discussions with Washington.

The proposed amendments outlined in the report included granting immunity to heads of state and government, excluding non-member state nationals from the court's reach, and weakening the court's ability to intervene when national authorities fail to prosecute. A foreign ministry spokesperson, who requested anonymity, stated that the report did not accurately reflect the Netherlands' position. They emphasized that various issues are not currently under active negotiation.

The spokesperson noted that while there are no direct negotiations at this moment, the Dutch government is exploring the scope for dialogue with non-state parties. This approach aligns with a decision made by consensus at last year's Assembly of States Parties, the court's governing body. Member states are scheduled to meet in The Hague from November 30 to December 7. This session was moved from New York because US sanctions and visa restrictions threatened the participation of delegates.

Any agreement to rewrite the core powers of the court would face significant legal hurdles. Under the general amendment procedure of the Rome Statute, adoption requires either consensus or a two-thirds majority. Furthermore, the changes must be ratified by seven-eighths of the member states before they can enter into force. The Dutch spokesperson added that the dialogue between the US and the States Parties has yet to take shape and that no concrete proposals addressing US concerns are currently before the Assembly.

The diplomatic tensions follow Washington's imposition of sanctions on the ICC as an institution on October 9. This move escalated a campaign that had already targeted most of the court's judges and prosecutors since February of the previous year. Those sanctions were enacted in the aftermath of arrest warrants issued in November 2024 for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant over alleged war crimes in Gaza.

The sanctions on individual court staff have been described as a financial death penalty because they cut affected officials off from basic financial services. However, Washington has granted a six-month exemption for certain operational transactions, valid until April 7, 2027, to allow time for negotiations. When fully effective, these measures could prevent the court from conducting transactions in US dollars, potentially crippling its operations by cutting it off from large parts of the international financial system.

Although the US is not a member state of the ICC, its recent actions and threats to dismantle the court are driven by opposition to the prosecution of Israeli leaders and the court's ability to try US officials. In December, Middle East Eye revealed that Washington had pressed for an end to the Palestine and Afghanistan investigations in exchange for lifting sanctions. A diplomat speaking on the sidelines of the assembly warned that any amendment intended to appease those calling for sanctions could destroy the court more than the sanctions themselves.

Sergey Vasiliev, a professor of international law based in the Netherlands, described potential changes aligned with US demands as a nightmare scenario that experts have long warned against. He stated that such compromises would turn the court into an obedient toothless lapdog. Vasiliev suggested that the heated exchange between lawmakers and the foreign minister reveals the awkward position of the Dutch government, which is expected to protect the court it hosts while embracing the Trump administration's offer of room for diplomacy.