US Sanctions on the ICC: A Symptomatic Approach Towards International Law

US Sanctions on the ICC: A Symptomatic Approach Towards International Law
Prosecutor Fatou Bensouda at the International Criminal Court (ICC) in The Hague, Netherlands.
Source: (Bas Czerwinski/Pool file via AP)

On September 2, 2020, former US Secretary of State, Mike Pompeo, announced US economic sanctions on the International Criminal Court’s Prosecutor, the Gambian lawyer Ms. Fatou Bensouda, and its official Phakiso Mochochoko. These measures are due to the US’s objection to the Prosecutor’s intention to start a proceeding concerning potential crimes perpetrated by American officials in Afghanistan.

The failure to recognize the international criminal jurisdiction highlighted by these economic measures was a part of Trump’s approach to international relations, standing back from multilateralism in favour of a unilateral approach. However, this attitude towards the ICC only embodies the extreme version of a relationship that has always been controversial since the set up of the Court.

The reality of international political interests has always represented a sizeable hurdle in the forging of a rule-based international criminal jurisdiction, which, however, remains bound to the willingness of states.   

THE SANCTIONS

The US Government’s decision to impose sanctions on the Hague-based Court’s officials, was not unexpected. In fact, they came after the previous 13928 Executive Order issued in June 2020 authorizing other economic sanctions on ICC officials, aimed at persuading the Court to refrain from opening an investigation on alleged crimes committed by American officials during the Afghan War.

Former Secretary of State, Mike Pompeo, has called this a serious violation to American sovereignty, opposing on the grounds that there is no legitimacy to indict or investigate a non-member state, since the US did not ratify the Rome Statute setting up the Court in 1998. However, the ICC condemned the American measures, considering them an attempt to interfere with its independent jurisdiction and its right to address grave human rights violations as its Statutes set out.

Furthermore, the Court reaffirmed its right to prosecute Afghanistan due to its membership of the ICC since 2003, which gives it the authority to investigate on its territory despite the nationality of the suspects. The unilateral measures of the Trump’s Administration were strongly condemned by the United Nations, especially by ICC Member States, including those very allies to Washington. As a result, a joint statement of 74 Members of the Hague-based Court, led by Germany, in support of the Court was unveiled on the occasion of the ICC Report to the General Assembly, this last November. The statement expressed:

unwavering support for the Court as an independent and impartial judicial institution” and recalled “that the ICC is a court of last resort, which anchors a system of justice for serious international crimes rooted in national courts. National authorities have the primary responsibility to investigate and prosecute Rome Statute crimes. The ICC only steps in when States are unwilling or unable to genuinely carry out national proceedings”.

In the final remarks, they also noted:

that sanctions are a tool to be used against those responsible for the most serious crimes, not against those seeking justice. Any attempt to undermine the independence of the Court should not be tolerated”.

The ICC’s Prosecutor, who was banned from entering the US’s territory, except when travelling to the UN’s Headquarter in New York, and whose American bank account has been frozen, also responded by saying that “We are a court of law, we do not do politics” and “We have no agenda other than to honourably fulfil our mandate”.

THE COMPLEX RELATIONSHIP BETWEEN THE US AND THE ICC

US Sanctions on the ICC: A Symptomatic Approach Towards International Law
US President Donald Trump said in a statement the ICC investigations ‘threaten to infringe on our national sovereignty‘.
Source: (Kevin Lamarque/Reuters)

Since the beginning, the American Government has encountered many hardships whilst deciding whether to commit itself or not to the Court.

Former President Clinton decided to sign the Rome Statute in 1998 after tough negotiations. However, his successor, President Bush, withdrew the signature since their negotiated reservations to the treaty, claiming the exemption from the Court’s jurisdiction, were not accepted. A turnaround was registered during the Obama Administration, which was characterized by a more cooperative approach towards the Hague-based Court. Evidence of this tendency was shown by the decision to vote in favour of the 2011 UN’s Resolution authorising an investigation into Libya’s mass violations of human rights, and it cooperated in the arrest of a Congolese militia leader who was afterwards convicted for war crimes.

Nevertheless, this cooperation was ceased when Trump arrived in the White House, and his shift to a rather more unilateral approach to international relations at the expense of multilateralism. On the other hand, the ICC, since its constitution, also seemed to be trying to refrain from being involved in any investigation concerning great powers, and because of this, it has been strongly criticized by African countries which argued the extreme speed in handling African cases and blaming the Court for being overly focused on that region.

HOW COULD BIDEN’S PRESIDENCY AFFECT US POLICY TOWARDS THE ICC?

On his very first day as President of the United States of America, Joe Biden signed 17 executive orders including ones aimed at re-joining the Paris Agreement and the WHO, as promised during his electoral campaign. This suggests a willingness to undertake a new course towards multilateral actions in tackling global issues. As a result, it seems likely that sanctions on the ICC officials will be lifted. However, President Biden has not said much on the ICC yet.

Thus, it is important to recall that the International Criminal Court has long been considered a political threat by both the Democrats and the Republicans. Considering the political consequences that an investigation on American officials would have, it suggests a possibly cautious reconciliation. A shifting approach in the international jurisdiction would probably entail a long process and for now, other key priorities seem to be on Biden’s Agenda.

  • What is next for international criminal jurisdiction?
  • What are the prospects of changing under Biden’s presidency?
  • How could the ICC become more effective?

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