Case Explained: Law, Not War: Why Cuba should Join the International Criminal Court in an effort to avert American Aggression – Legal Perspective

[Mikel Delagrange is a Cuban American lawyer who worked for 12 years at the ICC and is currently the Senior International Legal Advisor at the Wayamo Foundation

Mark Kersten is an Assistant Professor of Criminology & Criminal Justice at the University of the Fraser Valley in Canada and a Senior Consultant at the Wayamo Foundation]

There is no indication that the Trump
administration’s thirst for war or its disregard of international law and state
sovereignty will end with its ongoing war in Iran. On the contrary, aggression
in Venezuela and Iran, as well as the impunity enjoyed by the United States following
multiple unlawful military actions, suggests that additional violations of the
territorial integrity of Washington’s adversaries are likely. Given recent
developments, including threats of a takeover and an enhanced military blockade
enforced by the USS Iwo Jima and USS San Antonio, Cuba appears to
be next. What are the country’s options, and could joining the International
Criminal Court (ICC) be among them? In this post, we argue that becoming an ICC
member-state is in Cuba’s interest as well as in the interests of any state
seeking to mitigate American aggression. We argue this, in line with the famous
call from Nuremberg prosecutor Benjamin Ferencz: law, not war.

When someone tells you who they are,
believe them. When someone tells you what they’re preparing to do, take them
seriously. President Trump and Secretary of State Marco Rubio have both
recently declared Cuba as their next target for regime change, with all options
to effectuate that change on the table, including unlawful acts of aggression.
To fast track that change, the U.S. military has
initiated a near-total blockade around the island,  which has already resulted in a
humanitarian crisis
involving food and medical shortages, transportation and agricultural paralysis
and electrical blackouts in hospitals and schools.

There are grounds to believe that the Trump administration could be committing multiple international crimes, including the crime of aggression, crimes against humanity, and potential war crimes (if an armed conflict is determined to exist between Cuba and the U.S.). In what follows, we lay out these allegations and argue that even if the ICC cannot prosecute the crime of aggression in this context, joining the Court could increase the costs of American belligerence in Cuba and elsewhere.

The Crime of Aggression, Crimes Against Humanity and War Crimes

On the face of it, it is possible
that the United States is already committing acts of aggression as well as
crimes against humanity in Cuba, via its embargo. According to Article 8(bis)
of the Rome Statute, the Crime of Aggression is defined as:

1. …For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:
   c) The blockade of the ports or coasts of a State by the armed forces of another State;

At the same time, there is an
argument to be made that the U.S. may either be committing or risks committing
the following crimes against humanity and potential war crimes, if a finding of
an international armed conflict is established between the U.S. and Cuba, via
its blockade:

• Starvation of civilians as a method of warfare as a war crime
  contrary to article 8(2)(b)(xxv) of the Statute;
• Wilfully causing great suffering, or serious injury to body or
  health contrary to article 8(2)(a)(iii);
• Persecution (political/national group) as a crime against
  humanity contrary to article 7(1)(h);
• Other inhumane acts as crimes against humanity contrary to
  article 7(1)(k).

The embargo has already led to
serious shortages of food, medicine and fuel. Cuba is facing a spiraling
humanitarian crisis intentionally imposed by Washington. And while there may
not yet be starvation or widespread death, the risk of both is growing by the
day, and the sordid lesson from Gaza is that the world must not wait until
blockades and the denial of food and medicine express themselves in the wholesale
destruction of civilian life.

Permissive Grounds for Aggression

Many Cuban-Americans are eager to
displace the Cuban government. Recently, and seemingly contrary to the orders
of Cuban-American Secretary of State Rubio, a group of armed mercenaries were sent on
what appears to have been a suicide mission to invade Cuba. When the single
boat was inevitably destroyed by the Cuban navy, politicians in Miami decried the
incident as murder
in what may have been an attempt to incite American public opinion in favor of
invasion. Pretexts in the Cuban-American conflict (as in the Iranian context)
have historically been easy to construct. Remember the Maine!

How are such acts and threats to the
sovereignty of Cuba possible and with such minimal diplomatic costs to the
U.S.? One could argue that invasions and illegal acts of coercion towards Cuba
(and Venezuela) are precisely why the U.S. Administration has sought to
undermine international law (with Trump recently claiming “I don’t need
international law”) and the so-called rules-based order. But Cuba is making it
easy for them. The act of aggression of a militarily-enforced blockade is made
diplomatically possible in part because of Cuba’s political isolation and the resulting
unwillingness of states to defend its territorial integrity. This contrasts
with other recent cases. For example, while the Trump Administration considered
many different options to extract concessions in the context of the threatened
annexation of Greenland, a military blockade on Denmark, an EU member state
with diplomatic clout and many allies, certainly wasn’t one of them.

In an effort to stave off invasion
and elevate the importance of international law to its case, Cuba should
consider signing the Rome Statute of the International Criminal Court and
become the 126^th State Party of the Court. Our argument for Cuban
accession to the Rome Statute rests on five points.

Why Cuba should consider joining the
ICC

First, Havana should sign and ratify
the Rome Statute to create a potential operational risk for the Trump
administration that does not currently exist. American administrations since
President William McKinley (Trump’s idol) have operated with impunity in the
context of Cuba, citing various quasi legal pronouncements and instruments as
the basis for doing so, from the Monroe Doctrine and Platt Amendment to the
Cuban Liberty and Democratic Solidarity Act (Helms-Burton Act). If Cuba were a
State Party of the ICC, the perpetration of any crimes would no longer be
subject to American jurisdiction alone. The ICC could intervene and label those
responsible for international crimes as suspects with potential international
arrest warrants issued against them. This threat, realizable or not, would
nevertheless feature in the Trump Administration’s decision-making calculus
concerning the use of military force in Cuba and could therefore serve as a
potential deterrent.

Despite all its bluster concerning
the Court, the Trump administration appears to prefer not to contend with
extra-territorial jurisdiction on its actions. A case in point is Venezuela. Reports suggest that it is not by
accident that the Trump Administration has yet to sanction the ICC as an
institution, despite threats to do so. The ever-transactional Trump
administration is said to be seeking a quid pro quo from the Court: don’t issue
arrest warrants against Americans in the context of the US Military’s recent
involvement in Venezuela (Venezuela is a State Party to the Rome Statute) and
the Americans won’t sanction the institution.

While the ICC, as an impartial and
independent institution should be in no danger of capitulating to such demands,
a recent decision by the OTP to close
the Venezuela II preliminary examination into America’s sanctions on
Venezuela suggests that the Court may not be deaf to political pressures and
context. Regardless, the fact that those overtures are being made signals a
degree of concern on the part of the Trump administration. In addition to ICC
arrest warrants being an obvious disqualifier for any Nobel Peace Prize,
President Trump knows that he will one day be out of office. Despite his tough
talk, Trump surely doesn’t envy the travel restrictions placed on his friends
Vladimir Putin and Benjamin Netanyahu. As a citizen, Trump is also uniquely
exposed to the jurisdiction of international criminal law. Unlike his strongman
political allies, Trump has a business empire associated with his name that
spans from Latin America to Europe, both ICC regional strongholds. Simply put,
being labelled an international criminal is bad for his brand and something
he’ll want to avoid as much as possible.

Second, by signing the Rome Statute and
referring themselves to the Court, Cuba could reframe the blockade as an
international crime. As mentioned above, the US blockade may fit within the
definition of the crime of aggression. Of course, and thanks to France, Canada, and the
United Kingdom, the Crime of Aggression is nearly impossible to implement because it cannot be investigated when
the offending state is not a member of the ICC, as is the case with the United
States. However, if the Cubans sign the Rome Statute, including the provisions
concerning the crime of aggression, they could make a referral to the ICC framing
the blockade in a similar fashion to how the blockade of Gaza was framed,
specifically as constituting crimes against humanity and potentially war crimes
under the Rome Statute.

Referring
itself to the ICC would force the Court’s Prosecutor to open a preliminary
examination into the situation in Cuba. Even if Cuba does not join the ICC, it
could still voluntarily request that Court to exercise jurisdiction over its
territory, under Article 12(3) of the Statute, something that other states –
Ivory Coast and Ukraine – have previously done. Whether or not any such request
would lead to an official investigation would be up to the ICC Prosecutor.
However, merely initiating a preliminary examination heightens the operational
risk for the Americans, and may even lead to them reconsidering the role of the
military in engaging with Cuba going forward. 

Third, unlike Venezuela or the
Philippines, Cuba may have little to fear from signing the Rome Statute.
Despite their diplomatic affinity for other American adversaries, the Cuban
government has little in common with the likes of Venezuela (under Nicholas
Maduro), Philippines (under Rodrigo Duterte) or Iran (under the Ayatollah Ali
Khamenei), all of whom face longstanding and credible allegations of widespread
and systematic crimes against humanity. Even Cuba’s most strident critics in
Miami would be hard pressed to manufacture claims of Cuban authorities killing.
Allegations of
Cuba detaining dissidents is the most common refrain from Miami. Even according
to their own allegations, the number of detained “political prisoners”
historically tends to hover between 100-200, with a notable and unfortunate
spike following the Covid-19 protest of 11 July 2021.
Should Havana want to insulate itself from ICC scrutiny and demonstrate good
faith with respect to international criminal law, it could immediately release
all remaining  political prisoners not involved in covert
operations for the United States, as it did in January
2025.
It could also signal that it will not only join the ICC but also cooperate
closely with the Court.

History suggests that states that
engage in genuine and constructive cooperation with the ICC are rarely targeted
by the institution because of the Court’s emphasis on positive
complementarity, meaning that the institution seeks to galvanize domestic
accountability for international crimes. The upshot is that if there are
concrete concerns about Cuban wrongdoing that could fall under the Rome
Statute, Havana could work with the ICC to ascertain what accountability
measures are necessary to improve its own human rights record, address any potential
wrongdoing, and avoid being targeted with any arrest warrants and implement
them internally. Other states – Colombia and Guinea, for example – have done
just that in recent years.

Fourth, signing the Rome Statute
would position Cuba among the 125 states who continue to support international criminal
law – even if not always consistently, despite American saber rattling and
threats. By becoming a state party, Cuba’s allies – especially in Africa but
also in Latin America and Europe – might be more willing to come to Cuba’s aid
without fear of retaliatory sanctions and out of a principled legal position
against international crimes and violations of state sovereignty. Some of those
states might recall the role that Cuba has played in the Global South for the
mass mobilization of doctors, not soldiers – with the notable exception of Operacion Carlota where volunteer
Cuban soldiers confronted Apartheid South Africa and won, helping to win
eventual independence for Angola, Namibia and South Africa in the process.

Today, those states might view Cuba’s
willingness to bind itself to the Rome Statute, and its prohibitions on crimes
against humanity, war crimes, and genocide, as an act of good faith in relation
to Havana’s commitment to international law, including towards its own
citizens. Those states who are rightly concerned about the trend of aggression
and violations of territorial sovereignty emanating from Washington, and who
have also consistently voted
against the blockade at the UNGA, would now be in a position to
enhance their support for Cuba by supporting the Court and the independence of
its processes.

Many are already walking a similar
tightrope in the context of the ICC’s Gaza investigation, supporting the Court
and its ongoing investigations as an indirect way to support civilians and
accountability in Palestine. Perhaps some states parties, having already been
subjected to retaliatory tariffs by the U.S. (Spain, South Africa) could even
join Cuba in their referral of the situation in the country to the Court, and
do so not out of allegiance to Havana but out of fealty to international law
and accountability.

Finally, even if the Cuban government
would rather negotiate with Trump than to “poke the bear”, experience shows
that, with this Administration, it is far better to negotiate from a position
of strength rather than one of desperation. It is not a panacea, but Cuba
joining the ICC could change the equation for the Americans by using the Rome
Statute as a shield against U.S. belligerence and economic strangulation.
Facing invasion and given the pressing need to prioritize the protection of civilian
life and prevent atrocities, that is among the most obvious and best cards that
the Cubans have left to play.