ICC Sanctions Symposium: Sanctions and Exceptionalism

[Sharon Nakandha is a Program Officer with the Africa Regional Office of the Open Society Foundations.]

‘The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court. We will not cooperate with the ICC. We will provide no assistance to the ICC and we certainly will not join the ICC.’ —

— John Bolton delivering what he called a ‘clear and unambiguous message’ on behalf of the President of the United States.

In the Beginning…

The USA’s relationship with the International Criminal Court  is somewhat of an enigma. It is not a party to the Rome Statute and yet because of its influence on global politics and permanent UN Security Council membership, it has an automatic stake in multilateral institutions like the ICC.

Until President Trump’s tenure, USA observers regularly attended and addressed sessions of the ICC Assembly of States Parties (ASP). Each address emphasized the country’s commitment and contribution to making accountability a reality in the problematic spots of the world—Libya, Sudan, South Sudan, the DRC, Central African Republic, Guinea, Uganda, Syria, Iraq all received special mention. They highlighted the financial and in-kind support it offered to the Extraordinary African Chambers that tried former Chadian President Habré, the Specialist Chambers in Kosovo, the Special Criminal Court in the CAR and even towards Guinea’s efforts to bring to trial those responsible for the brutal crimes against civilians during the 2009 stadium massacre.

All this changed the day that the ICC decided to turn its attention to the atrocities in Afghanistan, one of its member states. USA Government representatives presented a litany of reasons why this was unacceptable. Among them, their country’s ‘robust system of investigation, accountability and transparency that is among the best in the world’. On the accountability sojourn, many nations wish that the USA and the world at large would grant them the same benefit of doubt when they request the opportunity for their national and regional processes to take precedence over the international ones often imposed by dominant powers including the USA. Granted, some of them use this as a pretext to avoid justice. However, if the international system makes common cause of accountability then it is incumbent on everyone to demand of the United States what it demands of other nations—clear proof, not only from government sources but from victims too, of the sanctity of the systems tasked with delivering this justice. The microscopic scrutiny extended to others should equally apply even where countries like the USA with a robust public diplomacy machinery are involved.

The USA Pulls Out the Sanctions Card and Other Tactics

The reverberations from the infamous sanctions across the globe and the frenzy into which they threw international law and institutions worldwide could suggest that one non-state party is by far more influential than the current 123 ICC member states. The USA unilaterally opted to use a foreign policy mechanism often deployed for perpetrators of human rights violations to target the individuals working to bring such perpetrators to book. The sanctions, while unprecedented, were not the country’s first attempt to curtail the work of the ICC. The Bush Administration proactively pushed different ICC member states to conclude Bilateral Immunity Agreements  to shield the USA’s citizens from ICC prosecution in the event of their implication in the commission of Rome Statute crimes on the territory of such states. Like the Bush administration before it, President Trump’s sanctions against the ICC were anchored on a notion that no system is good enough to try its citizens even where they commit crimes on foreign soil, thousands of miles away from home.

End Sanctions, Enter ‘Engagement’

Like others in the international criminal law world, I recently breathed a sigh of relief when the Biden Administration decided to lift the sanctions, largely because Fatou Bensouda and Phakiso Mochochoko’s lives can now return to normal. Today, attempts to look up the infamous Executive Order that got us here lead you to an ‘error 44/Page Not Found message’, a sign that the US has turned over a new page and that in many ways President Biden is living up to his promise of a return to diplomacy in US foreign policy. 

The US Secretary of State’s Press Statement  announcing the end of the sanctions is a reminder of this new political dispensation anchored in diplomacy. He highlights what we all know—it’s disagreement with the ICC’s actions relating to Afghanistan and Palestine and their objection to the exercise of jurisdiction over personnel of non-states parties such as the US itself and its ally Israel. He follows this emphatic stand with the below line of interest:

‘We believe, however, that our concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.’

In summary, the USA is back to ‘non-destructive’ mode when it comes to its engagement with the ICC. We are back to the country that Bosco Ntaganda approached for extradition to the ICC, the one that abstained from the vote when the UN Security Council decided to refer the situation in Darfur to the Prosecutor of the ICC for investigation and that spoke out when ICC fugitive Omar al-Bashir appeared at an international summit in Indonesia. That same United States is the one that occasionally sent observers to attend and address the ICC Assembly of States Parties.

I celebrate their return to the fold not because I am convinced that this is the ideal but for the simple reason that I have grown accustomed to expecting the bare minimum from previous American administrations. The ICC’s own tempered statement in the aftermath of the sanctions tells of the exceptional place that the USA occupies, ‘The Court is mindful that the United States has traditionally made important contributions to the cause of international criminal justice. The Court stands ready to reengage with the US in the continuation of that tradition based on mutual respect and constructive engagement.’ It is highly unlikely that the court would have reacted in a similar manner in the event that a country with lesser diplomatic and financial muscle than the USA issued the same sanctions against its officials.

There appears to be a certain level of contentment with seeing the country commit to ‘engage’ because this is perceived to be less destructive than the sanctions. The reality however is that the USA will never cooperate with the ICC on the two ongoing investigations (Afghanistan and Palestine) which triggered the sanctions in the first place. It’s commitment to engage therefore points to a fait accompli. Even without necessarily using sanctions, it is fully capable of obstructing the work of the ICC by, among others, using its extensive foreign assistance commitments in individual countries and regions as a tool to ensure that they do not hand over their nationals and allies to the ICC. Supporters of the work of the ICC need to put it to task to explain the “stakeholders” it intends to approach in this engagement drive. Will the high-level diplomatic discussions between the USA, the ICC and relevant state parties also include the alleged victims in Palestine and Afghanistan who are seeking justice?

‘[T]he United States is not a party to the Rome Statute and has not consented to any assertion of ICC jurisdiction, nor has the Security Council taken action under Chapter VII of the UN Charter to establish jurisdiction over U.S. personnel.’

Statement on Behalf of the United States of America 16th Session of the Assembly of States Parties December 8, 2017

The ‘non-state party’ arguments made by the USA to justify its position on Afghanistan and Palestine take me back to the UN Security Council’s referral of the Darfur situation and Libya to the ICC. Sudan and Libya like the USA were not state parties to the Rome Statute. In the former, the United States abstained from this crucial vote and by so doing, made it possible for the ICC to look into matters concerning a non-state party.  In the latter, it was in fact one of the sponsors of the resolution unanimously adopted by the council.

In her passionate remarks during the Darfur debate, the United States representative Anne Woods Patterson had the unenviable task of explaining her country’s rather odd position. I summarize it as follows:

• The USA strongly supports bringing those responsible for the crimes and atrocities in Darfur to justice.
• It fundamentally objects to the ICC exercising jurisdiction over nationals including government officials of States not party to the Rome Statute.
• It has decided not to oppose the resolution because of the need for the international community to work together in order to end the climate of impunity in the Sudan, and because the resolution provided protection from investigation or prosecution for United States nationals and members of the armed forces of non-State parties.

Her remarks are mindboggling in many ways—the United States, by abstaining, implicitly gave the ICC permission to proceed to investigate a non-state party but at the same time made it clear that the ICC could not investigate its own nationals because they are a non-state party. This demonstrates the somewhat transactional relationship that the USA enjoys with the rest of the world on matters related to justice for the worst atrocities—it appears to act on such atrocities only when it suits its national interests rather than because it is the morally right thing to do.  Since George Washington’s infamous 1796 Farewell Address, American foreign policy has prided itself in its ability to maintain the much-needed delicate balance between self-interest and morality. The latter has always been postured as an anchor for the observance of good faith and justice towards other nations. This newfound tendency to bifurcate self-interest from high morality in the ICC era is therefore contrary to one of the oldest doctrines in US diplomatic and foreign policy traditions.

The same justice deemed suitable for others who act outside the confines of the law should equally work where the United States and its allies make similar tragic errors that lead to unconscionable loss of lives in the course of asserting their influence across the globe.

If the ICC can investigate Sudan, a non-state party at the behest of the UN Security Council and its members (including those like the US who abstained) then it can in turn rightly look into other contexts that may reveal the complicity of non-state parties like Israel and the USA in the commission of grave crimes.  Afghanistan and Palestine are parties to the Rome Statute in their own right and therefore it is within the scope of the ICC to look into crimes occurring on their territory. They are neither colonies nor protectorates of the United States tasked with doing the bidding of the master. The antagonistic and defensive approach taken by the US towards the investigations points to a cover-up and implicitly, an admission of guilt by itself and its allies. USA failure to support these investigations and prosecutions even where they are a political inconvenience is therefore a disservice to victims of mass atrocities in not only Afghanistan and Palestine but elsewhere too.

In the course of its ‘engagement’, the United States has to put to rest one of its main talking points concerning its contribution and support for the establishment of a range of international, regional and domestic tribunals in different parts of the world including Iraq, Syria and Burma (also highlighted in the recent press statement). This cannot shield it from real questions about its commitment to justice especially where its political interests are at stake.

While the United States sanctions were the ultimate evil, new age diplomacy that still ultimately frustrates the work of the ICC is equally dangerous and supporters of the ICC should be at the forefront of speaking out against it. This is one way of contributing to ending the lingering questions about its genuine commitment to the rule of law, access to justice and accountability for mass atrocities.