ICC Sanctions Symposium: From Subtle Opposition to Active Marginalisation–U.S. Sanctions Against I.C.C. Officials in Context, and Future Implications

[Nabil M. Orina is a Postdoctoral Research Fellow at the Centre of Excellence for International Courts (iCourts), Faculty of Law, University of Copenhagen. He holds a PhD from City University of Hong Kong.]

President Trump’s sanctions against the Prosecutor of the International Criminal Court (the Court), Fatou Bensouda and the Head of Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko have rightly attracted condemnation from states as well as academic commentary. The sanctions, which have now been revoked underlie a bigger issue in the relationship between the United States of America (the U.S.) and the Court, specifically, but also the relationship between powerful states and the Court, at a general level. In this commentary, I endeavour to make that connection and further along to discuss what the broader implication of such a relationship portends for the future of the Court.

While the U.S. has expressed general support for accountability and the work of the Court, it has nevertheless maintained objections to the exercise of jurisdiction over its nationals and those of its allies. The U.S. has maintained that with the exception of United Nations Security Council referrals, the Court can only exercise jurisdiction over nationals of a state with the consent of that state. In addition to this objection in regard to the Court’s jurisdiction, the U.S. has also taken measures to protect its interest especially in regard to its military personnel abroad through the enactment of the American Service-Members’ Protection Act. This law which is colloquially known as the ‘Hague Invasion Act’ gives the U.S. power to use military force to rescue its citizens transferred to the Court. Furthermore, the U.S. has signed bilateral immunity agreements with other states in order for those states not to surrender U.S. citizens to the Court. These agreements have also been described as efforts to undermine the Court.   

Despite all these subtle efforts to undermine the Court, the sanctions imposed by the Trump administration marked a turning point in international criminal justice. Whereas it was always obvious that powerful countries and particularly the U.S. had expressed reservations about the Court and sought to control it, active measures to derail its work which included sanctioning its key officials had not been contemplated. However, despite these sanctions’ shocking effect for their unlawfulness (see here) or perpetuation of racism (see here), they are only part of a consistent marginalisation of international criminal justice by powerful states. What these sanctions have come to expose is the extent to which powerful states can go to marginalise international criminal justice if it threatens their interests. Contextually, all these events arise from power and control in international criminal justice especially for states with a veto vote at the United Nations Security Council.

While the U.S. abstained from voting for the United Nations Security Council resolution that referred the situation in Darfur to the Court (Resolution 1593(2005)), it made it clear that the only route through which the Court could exercise jurisdiction over non-state parties was through a UN Security Council referral (Bosco, 2014). Further, the U.S.’s insistence that the jurisdiction of the Court would not extend to other non-state party nationals in Sudan was captured in the resolution (Bosco, 2014). The same was also reflected in Resolution 1970 (2011) referring the situation in the Libya Arab Jamahiriya to the Court. Bosco notes that despite the problematic nature of these resolutions, supporters of the Court were happy that the powerful states including China, U.S. and Russia who are non-state parties to the Rome Statute, did not veto the resolutions (Bosco, 2014).

Even though only addressed in academic commentary, the problematic manner in which the resolutions referring the situation in Darfur and the situation in Libya were framed had far reaching effects in how the powerful states, especially those who are not states parties to the Rome Statute and have the veto power, regarded the Court. For these states, the Court would only exercise jurisdiction on non-member states in accordance with the parameters set by the Security Council. In the negotiation for the Rome Statute, it was apparent that the veto holding members of the Security Council did not want to lose control of the power to determine who gets subjected to international criminal justice outside exercise of jurisdiction by consent. For that reason, these states have been uncomfortable with what they consider as ICC’s expansive reach of jurisdiction. It is also noteworthy that the Security Council has not taken sufficient steps to ensure cooperation in compliance with the two resolutions referring Sudan and Libya to the ICC (see, Aregawi). This is in addition to not providing financial support to the Court for the referred situations.

After years of selecting situations primarily on the African continent, the Court has in the past few years started focussing on other situations in other parts of the world. What may have been a turning point for the Court in extending investigations for atrocity crimes outside the African continent may also be the Court’s biggest challenge yet. One would wonder if the investigations in the situations where the Court is facing opposition are likely to achieve much more than mere symbolism or worse, weaken the Court further when it fails to receive cooperation that is necessary to collect evidence and to try suspects.

The investigations in situations outside the African continent may be seen as responding to the criticism levelled against the Court that it was only targeting weak states especially those on the African continent. As described by Klamberg, ‘only rebels, the vanguished and defeated, rogue States and scapegoats appear to be in the crosshairs of international criminal justice’ (Klamberg, 2020). Understandably, therefore, OTP’s focus on situations outside the African continent and necessarily involving powerful states and their allies is an attempt to align international criminal justice as a counter-hegemonic project, as it has been theorised to be. As expected, though, powerful states have fought back.

It is against this backdrop that we should understand President Biden’s assertions in regard to the Court upon revoking the sanctions against the Court’s officials. Whereas the U.S. under President Biden believes that imposition of sanctions was ‘not an effective or appropriate strategy for addressing the United States’ concerns with the ICC,’ there is a strong indication that the U.S. will continue to undermine the judicial function of the Court. The difference between the initial subtle opposition and the current position will be that whereas initially the U.S. expressed its opposition to the Court out of apprehension that its nationals could be subject to its jurisdiction, the current opposition is more direct as it relates to two active situations where in one – the Situation in Afghanistan – its nationals may be subject of investigation and in another – the Situation in Palestine – where nationals of its ally, Israel, face potential investigations.

It is not in doubt that the U.S. and other powerful states are uncomfortable with a structure of international criminal justice that is outside their control. Tellingly, this resistance is not confined to non-states parties only as demonstrated by the letter by the United Kingdom in opposition to ICC investigations in the situation in Palestine. The United Kingdom’s letter, while acknowledging the independence of the Court, goes ahead to undermine the same institution through a political statement. Similar statements have been issued by Australia, Canada and Germany. By refusing to be subject to this system or by purporting to shield their allies from the Court but still holding out to be promoting the ideals of international criminal justice, powerful states have made it clear that international criminal justice is only applicable to weak states. To that extent, the sovereignty argument used by these states is a more convenient route than the mechanism of complementarity established under the Rome Statute which should assuage any concerns of sovereignty. Indeed, it is ironical to recognise the independence of the Court while at the same time issue a statement undermining the authority of the Court. The double standards exhibited by these statements are obvious as argued here.  

The wider effect of these events that directly undermine the authority of the Court is its weakening. Pre-Trial Chamber II (the Situation in the Islamic Republic of Afghanistan) came closest to admitting that the Court is powerless when facing a powerful state. Although the Appeals Chamber found that the pre-trial chamber erred in considering the ‘interests of justice’ in deciding whether or not to authorise an investigation and in any case the PTC’s determination of interests of justice was ‘speculative’ and unsupported by information, the PTC decision was certainly an admission of the asymmetries of power in international criminal justice. The Court thus finds itself in a difficult position where confrontations with powerful states are likely to further weaken it. As cautioned by David Bosco, a confrontational approach with powerful states is bound to have no success and may trigger drastic action from some states to weaken the Court (Bosco, 2017). The Court is then faced with a seemingly insurmountable dilemma of acting independently and going after cases regardless of the state involved or its allies, on one hand, and treading with caution by picking ‘low-hanging fruits’ from weak states, on the other hand. It is sort of ‘inescapable dyads’ as described by Daryl Robinson. If the Court goes for easy cases where it can obtain the cooperation of states through self-referrals, it is accused of doing the bidding for those States. On the other hand, when the Court takes on State criminality and fails, it is seen as weak. Similarly, if the Court were to avoid impossible cases, it would be harshly criticised.

As the OTP goes through a transition to new leadership, the incoming Prosecutor will be intimately aware of this dilemma. In fact, this will be the right time to reconsider how the Court has related with states generally. For some time, the Court has come across as an instrument of weak states’ military and political objectives (Ba, 2020), to the extent that an attempt to go after the powerful states or to take on big cases has been met with strong opposition. Whereas it is important for the Court to underscore its independence by not backing away from controversial cases, it needs to rethink its strategy in selection of cases and situations to avoid pursuing mere symbolism. For now, all eyes will be on the incoming Prosecutor, Karim Khan, who will have a big task of ensuring that the independence of his office is not undermined and that the Court is capable of safely navigating strong power politics and interests. Certainly, the current crisis will feature prominently in his tenure.