ICC Sanctions Symposium: Between the Institutional and the Intellectual: The ICC-US ‘Sanctions’ Communications and the Irony of Critique

[Rashmi Dharia is a doctoral candidate at Sciences Po Law School, Paris.]

As of 2^nd April 2021, the Biden administration rescinded the sanctions that had been imposed by Executive Order 13928 of 11^th June 2020 and its follow-up on 2^nd September 2020 on ICC Prosecutor Fatou Bensouda and the Head of the Jurisdiction, Complementarity and Co-operation Division Mr Phakiso Mochochoko. The US-ICC relationship looks all set to ‘go back’ from manifest and active hostility to garden variety tropes of ‘constructive engagement’ –  a story that, despite its baggage, can be inhabited with ease on account of its sheer familiarity. The usual innocuous statements (always with just enough passive-aggressive energy to be palatable to all parties) are a bit of a relief.

However, the Trump era is not a single erasable unit in the history of US engagement with the ICC. Although one is strongly tempted to sweep the entire episode under the ‘Trump’ carpet of history and get on with it, the deep distrust between the United States (among other powerful states) and the Court is nothing new. The sanctions, in their blatant arrogance and unconscionability, only broke through the careful performance of mutual respect that is normally maintained in the communications between the US and the ICC, and opened up a channel of outright antagonism. This open channel threw into relief a lot of jagged edges in the contours of international criminal law, which we cannot unsee in spite of the apparent restoration of status quo.

I thought quite a bit about what I could contribute to this symposium, seeing that everything that can be written about this issue has already been written, probably better than I could ever write it. However, now that we have the luxury of hindsight and enough of us to guarantee infinite dissection, I will explore in this post an aspect of this encounter that I find especially unsettling – the irony that critical perspectives concerning the International Criminal Court (and international criminal justice generally) are often distorted to benefit powerful actors, in ways that are detrimental to the very subjects that these perspectives try to centre. 

International criminal law, like most legal disciplines, has several overlapping planes of operation and performance. Two of these are the plane of scholarship and ‘public intellectualship’, and the plane of mandate-driven institutional activity. Therefore, a regular feature of most speech-acts concerning ICL is that they are ‘double-coded’. They speak on at least two levels at once – that of scholarship and ‘discourse’, and that of the day-to-day work that goes into the functioning of its institutions as political entities. In what follows, I read the orders imposing and revoking sanctions, and the Court’s responses to them, from the space between these levels. In doing so I attempt to demonstrate how the dynamics between these levels contributes to the irony that I invoke above.

Identifying Tropes in the US-ICC ‘Sanctions’ Exchange

One of the key features of the order imposing the sanctions is that it accuses the Court of overreach, in that it would subject US nationals, and those of its allies, to actions that would be incommensurate with their status as non-parties to the Rome Statute. It states that it opposes the Court’s ‘overbroad, non-consensual assertions of jurisdiction’ which pose ‘an unusual and extraordinary threat to the national security and foreign policy of the United States’. Mike Pompeo, in the press statement announcing the sanctions, also called the Court ‘a thoroughly broken and corrupt institution’.

In response, the Court stated that the sanctions were ‘another attempt to interfere with the Court’s judicial and prosecutorial independence … as mandated under the ICC Rome Statute’, which, it adds, is supported by ‘two thirds of the world’s States’. The Court uses, as it must to assert its legitimacy, the language of neutrality, near-universality, and strict adherence to its mandate.

The Biden administration’s recent order revoking the sanctions, in its attempt to restore status quo, rebuilds the fourth wall. It states that the United States ‘continues to object to the International Criminal Court’s (ICC) assertions of jurisdiction over personnel of such non-States Parties as the United States and its allies absent their consent or referral by the United Nations Security Council’, therefore still accusing the Court of overreach. Further, it states that it will ‘vigorously protect current and former United States personnel from any attempts to exercise such jurisdiction’, once again implying that they will protect their nationals from such overreach. It also puts for its assessment that the imposition of sanctions on the Court and its personnel would not be ‘an effective or appropriate strategy’, thus implying that the actual sanctions were the only thing wrong with Trump’s executive order.

The press statement released by the White House announcing the revocation of the sanctions reiterates that the United States is a leader in the international criminal justice project, and that its interventions have historically ensured ‘fair judgments issued by international tribunals against justly convicted defendants’ from all over the world. Further, they are ‘encouraged that States Parties to the Rome Statute are considering a broad range of reforms to help the Court prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes’. This reform, it adds as a little coup de grâce, is ‘a worthwhile effort’.

The Court in its response stated once again that it acts strictly within the confines of the Rome Statute, as ‘a Court of last resort, in a manner complementary to national jurisdictions’ and that in doing so it ‘relies on the support and cooperation of its States Parties, representing all regions of the world, and of the international community more broadly’. It sticks, as mentioned above, to its grating but appropriate brief of neutrality, near-universality, and strict adherence to the due process enshrined in its mandate. The communication has come a full circle and we are back, as I mentioned before, to the hope of ‘constructive engagement’.

The ‘Sanctions’ Exchange Between Institutional Dialogue and Discourse

Critical scholarship has questioned the Court’s enterprise by deconstructing the very myths upon which it relies for its political dialogue with its stakeholders. Among many others, its ‘neutrality’ has been challenged as being an all-purpose rhetoric which shrouds the Court’s selective targeting of situations on the African continent. Its claim of (almost) universality has been denounced on the grounds that powerful states will always be excluded from its purview and that states with less political capital are subject to institutional overreach and unequal enforcement of the Court’s mandate. The myth of due process has been challenged, for example, on the basis of the Court’s insufficient engagement with the rights of accused persons. Criticism has been levelled on the racism embedded into the Court’s deep-structure. In short, that the ICC is an independent and impartial institution that only applies the law and follows the mandated procedure is an assumption that scholars have challenged robustly over the years.

The orders imposing the sanctions, as well as, to an extent, those revoking them, challenge the Court by appropriating the same language tools that are used by critical scholarship. They question the Court’s neutrality by accusing it of overreach, the Court’s ambitions of universality by repeatedly emphasising that the US (and some of its key allies) are non-parties to the Rome Statute, and the Court’s ‘due process’ claim by claiming that its overreach would subject US nationals to ‘abuse, harassment and potential arrest’.   

The irony here is that this use of tools from critical scholarship only benefits the US and its powerful allies, and barely trickles down to the affected states, accused persons, victims, and institutional fault-lines that critique attempts to recentre. An illustration of this irony is that the US challenge to the ICC’s neutrality is posed through an order with deeply racist undertones, which does absolutely nothing to bolster the criticism of the distinctly non-neutral structural racism underpinning the Court’s activities.

Critical scholarship concerning the ICC is (mostly) generated with the purpose of posing sharp and relevant questions to the Court about its inherent structural flaws and biases, no matter whether it is received as aspirational critique, necessary critique, or ‘critique for critique’s sake’. The purpose of this work is to centre marginalised voices. However, the US-ICC dialogue demonstrates that hegemonic actors use language tools developed by critical perspectives in the level of discourse, and distort them in their speech-acts on the level of institutional activity. These tools are thus diluted to serve as rhetoric strategies used by powerful actors to avoid potential prosecution. In response, the ICC must recycle the myths of neutrality, universality, due process, and all their cousins. Critique, therefore, is caught in a double-bind between posing important questions to the project and inadvertently supplying strategic tools and vocabularies to powerful and influential actors who seek to sidestep the project altogether, including the useful bits.

This is in no way a new phenomenon. The sanctions exchange merely pierced the veil of this irony. It has been omnipresent across the spectrum of Western-liberal projects of justice. The international human rights project, for example, has also been criticised on all the grounds mentioned above. The tools and methods of this criticism have also been distorted regularly by numerous states to sidestep the project altogether, also including the useful bits.

It doesn’t take long for this conversation to turn into existential dread. When we swim down a little deeper, we face the fact that neither the language tools of legitimacy used by the ICC, nor its ‘pre-fab critique’, nor the irony nestled in the space between them, are in any way original. No judicial system, be it domestic or international, can escape them anytime soon. What then is the point of speaking of the sanctions in the larger picture? Especially since they have been revoked and business as usual has been restored?  Or of this post for that matter, which only points out something that is fairly obvious in the first place?

As is the case with everything under the international law sun, there is no neatly packaged ‘solution’ to the double-bind I attempt to demonstrate above. Nor is one required; the problem/solution binary is highly outdated.  Critique in international criminal law is as important as its ambitions, and its appropriation by hegemonic global actors is by no means a reason to blunt its edges. Critical scholarship of all kinds will continue to be generated. Powerful actors will keep sidestepping the Court’s jurisdiction, perhaps through measures more ‘effective and appropriate’ than the performance-wrecking sanctions discussed in this post. The Court will continue being confined to its tired talking points of legitimacy in the face of these powerful actors. Those who do the gritty, resilient, thankless work of keeping the project on its feet will keep on doing the best they can. The ‘worthwhile effort’ of reform will keep being envisaged, some reform will be implemented, and the wheel will keep on turning.

Although the sanctions themselves have been revoked, and there is the risk that one’s words about them will amount to nothing, the point is in the reading and speaking and writing of them anyway so that the ballad continues to be sung.  After all, the only pesky little thing that stuck around in Pandora’s box was hope.