US officials could face international warrants if steps are taken to displace Palestinians in Gaza

In a departure from decades of U.S. foreign policy, President Donald Trump announced this week that the U.S. would "clean out" the Gaza Strip and rebuild it, saying Palestinians living there should leave -- a statement that the United Nations and allies, including France and Germany, have called a violation of international law.

In the days since, Trump's plan has shifted by the day.

If the U.S. takes steps to force the displacement of the over 2 million Palestinians living in Gaza, U.S. officials could face arrest and prosecution in the International Criminal Court, a tribunal that prosecutes individuals under rules of international law.

Despite the U.S. not being one of the 125 states that recognize the jurisdiction of the ICC, the court can issue warrants for Americans whose actions in Gaza and the West Bank violate international law, if an ICC prosecutor's investigation finds reasonable grounds to believe that specific individuals perpetrated crimes, according to Tom Dannenbaum, an associate professor of international law at Tufts University's Fletcher School.

However, "Americans are pretty buffered from ever appearing before the ICC," Kim Scheppele, an international affairs professor at Princeton University who focuses on international law, told ABC News.

The ICC granted membership to the state of Palestine in 2015, giving the court territorial jurisdiction over crimes committed in Gaza and the West Bank, including East Jerusalem. A pretrial chamber affirmed the ratification in 2021.

The ratification laid the groundwork for the arrest warrant issued by the court against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant in May 2024.

Netanyahu referred to the warrant for alleged crimes against humanity -- issued for alleged starvation of Palestinians in Gaza, as well as willfully causing great suffering and other "inhumane acts" -- as "absurd" and a "hit job" in an interview with "Good Morning America" at the time.

How does the court work?

When there is suspicion of a criminal act, the ICC prosecutor investigates to determine whether there are reasonable grounds to believe specific crimes were committed. If that threshold is met, then the prosecutor asks for an arrest warrant for those individuals, according to the ICC.

But to obtain a conviction, the ICC prosecutor's office need to prove in court that a crime occurred beyond a reasonable doubt, according to the Rome Statue, which established the ICC.

If a warrant is issued for an individual, then the 125 states that recognize the court -- including France, Germany and the United Kingdom -- would have an obligation to arrest that person, according to the ICC.

In the context of the Palestinian Territories, the nationality of the suspected perpetrator of a crime does not exclude them from arrest or prosecution -- even in cases where the perpetrator's state does not recognize the court -- due to its jurisdiction over the territories.

Although the Trump administration has since walked back some of its rhetoric, if any U.S. official moves to "take over" Gaza and expel Palestinians, as Trump said, the ICC prosecutor could take action to secure a warrant against even top government officials, according to Dannenbaum.

Dannenbaum noted that Trump's statements -- if carried out literally -- could constitute two particular crimes, as seen by the ICC.

Trump's statements suggest that two crimes could be committed in this action, according to Dannenbaum.

"Often the language that's used around this is the term ethnic cleansing, but the specific legal manifestation of that is forcible transfer or forcible deportation, and where it's specifically discriminatory -- grounded in nationality or ethnicity, for example -- then that would be also the crime against humanity of persecution," Dannenbaum said.

"For example, an environment in which [Palestinians] are denied access to humanitarian essentials, would qualify for forcible deportation or transfer, and that could implicate either the crime against humanity of forcible deportation or the war crime of forcible deportation, or both," Dannenbaum said.

The punishment for these crimes could be up to 30 years, Dannenbaum said.

Trump has issued sanctions against the ICC, over its alleged targeting of the U.S. and Israel. ICC prosecutor Karim Khan is the first individual to be sanctioned, according to the Department of the Treasury.

Warrants against world leaders

The court itself does not have a body tasked with making arrests or enforcing warrants, but it depends on member states and requires their cooperation for almost everything including accessing crime scenes, engaging with witnesses, arrests, transfers and enforcement of sentences.

"The court is ultimately only as strong as the state parties to that court are willing to make it -- are willing to guarantee -- and has been clearly its biggest challenge in the now more than 20 years of its existence," Dannenbaum said.

The International Court of Justice relies on member states for enforcement of decisions. While the ICC prosecutes individuals, the International Court of Justice is a separate court that adjudicates disputes between nations and issues decisions on matters under international law.

While the likelihood of arrest of a sitting head of state may be low in the short term, the court does not have a statute of limitations and individuals become more vulnerable to arrest after they are no longer in power, Dannenbaum said.

The U.S. government has worked hard to secure agreements with allies that they will not turn over U.S. nationals to the ICC, called Article 98 agreements, and is working to secure them worldwide, Kim Scheppele, an international affairs professor at Princeton University who focuses on international law, told ABC News.

The U.S. has secured Article 98 agreements with 93 states, including Jordan -- where Trump said he would like to send Palestinians, according to the Department of State.

France, Germany and Italy are among the states that have not signed Article 98 agreements with the U.S.

Scheppele, of Princeton, noted that Americans are unlikely to ever appear before the ICC, even if it should issue warrants.

In order to have jurisdiction over the actions of Americans in the ICC, there would need to be evidence of Americans troops on the ground acting on direct orders from a head of state to do acts that amount to violations of international law litigated in the ICC.

"The ICC almost exclusively tries people at the tops of chains of commands. They don't ever really -- they don't have the resources to -- go after the foot soldiers," Scheppele said.

It would entail "U.S. troops being in Palestine commanded by Trump, ordering them to commit war crimes. It's not just that the troops have to commit war crimes; it's that the troops have to be ordered to commit war crimes," Scheppele said.

The court has recently issued arrest warrants for Netanyahu and Russian President Vladimir Putin -- Israel and Russia are two states that did not sign onto the Rome Statute -- a change in approach from the court's first decade and a half when it only focused on work in Africa and less powerful actors in the international system, Dannenbaum said.

"Certainly, the Russian invasion of Ukraine played a significant role. There's no question that that changed the paradigm, in particular, because that put a situation before the court in which there were powerful perpetrators, but there were also powerful states that thought to vindicate the law in response to those perpetrators," Dannenbaum said.

"Now, we're in a situation where the question is whether those actors that were on the side of the law in that context are willing to devote anything like the same level of attention and resources to situations that are less politically convenient for them. The system can't work if they don't," Dannenbaum said.

ICC arrest warrants also potentially prevent them from traveling to the 125 countries that are legally required to make an arrest. The U.S. has used Article 98 agreements to try and prevent the arrest of Americans in states party to the statute, but it has not secured agreements with all states that recognize the court.

"So now the U.S. -- which was completely thrilled when the ICC indicted Putin and [Maria Lvova-Belova, Russian commissioner for children's rights,] -- now wants to kill the court," Scheppele said.

"The U.S. has always been very careful about lawyering these agreements so that the accountability never bites back from an international tribunal," Scheppele said.

Putin was unable to attend the BRICS summit in person in South Africa in March 2023 when South African courts determined it would have a clear obligation to arrest Putin under the ICC framework. Putin also did not attend the G20 conference in Brazil last October due to the threat of arrest.

Even if it's unlikely Trump would take illegal action in Gaza, his stunning proposal could normalize forced displacement as an acceptable path of action, Dannenbaum warned.

"There are a couple of components that are especially dangerous, [including] the normalization of what constitute possible paths forward, in terms of the way that these are being understood in the political communities in Israel, in the United States and otherwise, and that starts to shift what people think of as the range of possibilities, which, even if this particular plan is never implemented ... could itself mean that many other kinds of illegal acts do occur," Dannenbaum said.