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Comment on the U.S. Sanctions Question: “Is it appropriate or effective for the United States to attempt to influence the actions of the International Criminal Court by means of the sanctions set forth in President Trump’s June 2020 Executive Order?”

The Biden Administration Should Abandon the United States ICC Sanctions Regime

I. Introduction

On March 5, 2020, the Appeals Chamber of the International Criminal Court (ICC) unanimously decided to grant the Prosecutor’s request to commence an investigation into alleged crimes under the Court’s jurisdiction in relation to the situation in Afghanistan. The Appeals Chamber authorized the prosecutor to investigate alleged crimes against humanity and war crimes committed on the territory of Afghanistan and other crimes that have a nexus to the armed conflict therein.1 Afghanistan acceded to the Rome Statute on February 10, 2003, thus allowing the ICC to exercise jurisdiction over crimes committed on its territory or by its nationals from May 1, 2003. The United States has been implicated in the commission of crimes on Afghanistan soil. This decision is the first by the ICC that could make American forces defendants in war crimes prosecutions by the Court.

While the United States participated extensively in deliberation of the Rome Statute, it did not ratify the document and does not submit to ICC jurisdiction. Multiple officials across the Trump administration have criticized the Court as being ineffective, unaccountable, and a dangerous encroachment on the sovereignty of states who have not given their consent to the jurisdiction of the ICC.2 Secretary of State Mike Pompeo declared that: “[the United States] will take all necessary measures to protect [their] citizens from this renegade, unlawful, so-called court.”3

On June 11, 2020 President Donald Trump issued Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court under the authority vested in him by various federal statutes. The order declared the ICC’s “illegitimate” exercise of jurisdiction to be “an unusual and extraordinary threat to the national security and foreign policy of the United States,” and blocked all property within the United States owned by designated natural or legal persons (among whom the Prosecutor counts herself) and barring any contribution or provision of funds, goods, or services to, or for the benefit of designated persons.4 This is the first time in the history of the ICC that formal sanctions have been issued by a non-state party objecting to the Court’s exercise of jurisdiction.

The sanctions approach enforced by the Trump Administration has been criticized as grotesque, illegal, and contrary to U.S. national interests by lawyers and legal scholars around the world.5 It further exacerbates the systematic demolition of the once positive perception of the United States abroad and encourages other democracies to follow in Washington’s footsteps when asked to pursue justice for genocide, war crimes, and crimes against humanity.6

The ICC has a framework in place to protect the sovereignty of non-state parties when it comes to cases that fall within the Court’s jurisdiction. Article 17 of the Rome Statute details the Court’s policy of complementarity, wherein it defers to national court proceedings and only assumes jurisdiction over criminal prosecutions when a state is unwilling or unable to conduct its own investigation.7 Further, crimes must reach a certain gravity threshold before the Prosecutor can initiate an investigation.8

The United States has the ability to respond to the ICC’s actions in more productive ways that meet United States foreign policy objectives and diminish any negative effects on the United States for resisting the jurisdiction of the ICC.9

This comment details three case studies in which countries that had not ratified the Rome Statute found themselves to be the subject of investigation by the Prosecutor. It categorizes the responses of these countries and makes recommendations as to what steps the Biden administration can take in lieu of sanctions. In doing so, the new administration preserves United States interests, upholds the rule of international law, and begins to repair its reputation internationally.

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II. Case Studies

A. Myanmar

On November 14, 2019, Pre-Trial Chamber III of the International Criminal Court authorized the Prosecutor to proceed with an investigation for the alleged crimes within the ICC’s jurisdiction in the Situation in the People’s Republic of Myanmar.10 The Chamber concluded that the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party. While Myanmar is not a State Party, Bangladesh ratified the Rome Statute in 2010.11

Since gaining independence from British Rule, Myanmar has seen multiple civil wars. These conflicts cover vast expanses of the country. Protracted strife comes from armed groups who seek a voice and autonomy in a nation that has been dominated by the majority Bamar ethnic nationalist Burmese military. In November 2019, the International Court of Justice and the International Criminal Court both approved international accountability initiatives for the situation in Myanmar. A summary of the proceedings in both courts and an evaluation of Myanmar’s response follows.

Gambia initiated proceedings at the ICJ in November 2019 citing that Myanmar had violated the Genocide Convention. In January 2020, the ICJ granted Gambia’s request for provisional and required Myanmar to prevent any acts that contribute to genocide, avoid destroying evidence related to the situation, and to report on the measures taken. Presidential Directives issued by Myanmar in response sought to prevent official hate speech, ordered compliance with the Genocide Convention, and preservation of the evidence, although there are allegations that this response is a sham showing of compliance.12

In November 2019, Pre-Trial Chamber III of the ICC authorized the Prosecutor to proceed with an investigation for the allege crimes within the ICC’s jurisdiction in Myanmar.13 Myanmar considered this to be an unlawful exercise of jurisdiction by the ICC because they are not a party to the Rome Statute. Victims of the alleged crimes against humanity of deportation by Myanmar were displaced to Bangladesh, which is a State Party of the Rome Statute. Accordingly, Pre-Trial Chamber III approved the Prosecutor’s investigation of these and other associated acts of persecution against the Rohingya population which were committed, at least in part, on the territory of Bangladesh. The investigation was not initiated by a referral from the U.N. Security Council, which would have granted jurisdiction to the ICC over all possible crimes within the jurisdiction of the Rome Statute (rather than those committed, at least in part, in the territory of Bangladesh).

In response, Myanmar has said that it “resolutely rejects” the ICC’s determination of jurisdiction over alleged deportations of Rohingya Muslims to Bangladesh as a crime against humanity.14 Official statements attack the legitimacy of the ICC, calling the Pre-Trial Chamber III’s ruling “the result of faulty procedure […] of dubious legal merit.”15 “Myanmar has denied allegations of atrocities made against its security forces by refugees, saying its military carried out justifiable actions against militants.”16

In response to The Gambia’s suit against Myanmar in the International Court of Justice (ICJ), Myanmar established its Independent Commission of Enquiry (ICOE). The ICOE’s mandate is to:

[I]nvestigate allegations of human rights violations and related issues following the terrorist attacks by the Arakan Rohingya Salvation Army in Rakhine State with a view to seeking accountability and formulating recommendations on steps to be taken to ensure peace and stability in Rakhine State.

There is no debate that the ICJ’s exercise of jurisdiction over Myanmar was improper, as Myanmar ratified the Genocide Convention. However, the creation of the ICOE could pose an Article 17 complementarity issue to advancement of a case within the ICC. While the Prosecutor must consider all issues of admissibility when requesting authorization to open an investigation, the Pre-Trial Chamber may only consider whether there is a reasonable basis that a crime within the jurisdiction of the court has been committed.17 Therefore, there is a possibility that the Trial Chamber of the ICC will decide that the ICOE is evidence of Myanmar’s willingness to investigate and prosecute the atrocities occurring in its territory and thus bar jurisdiction for the ICC.

B. Israel

Palestine sought to accept the jurisdiction of the ICC under Article 12(3) of the Rome Statute for all crimes committed in the territory of Palestine since July 1, 2002.18 However, due to Palestine’s status as a U.N. “observer entity,” the Prosecutor concluded that it could not join the Rome Statute and therefore could not bring itself under the jurisdiction of the Rome Statute as it had desired.19 In 2011, Palestine submitted an application for full U.N. membership.20 In 2012, the U.N. General Assembly issued a resolution that made Palestine a “non-member observer state” in a show of de-facto state recognition.21 Accordingly, Palestine acceded to the Rome Statute on January 2, 2015. The Prosecutor of the ICC announced the opening of a preliminary examination of the situation in Palestine fourteen days later.22

In response to heightening conflict in the West Bank, including East Jerusalem and Gaza, ICC Prosecutor Fatou Bensouda announced her intent to commence an investigation into the situation in Palestine in December 2019.23 She called on the Pre-Trial Chamber to confirm the Court’s territorial jurisdiction in Palestine before initiating the investigation.24 In her request, the Prosecutor explains that there is a reasonable basis to believe that members of the Israel Defense Forces and members of Hamas and Palestinian armed groups committed war crimes in the context of the 2014 hostilities in Gaza.25 Israel is not a State Party to the Rome Statute and does not consent to jurisdiction of the Court.

In response, the Israeli Attorney General Avichai Mandelblit released his own memorandum expressing objections to the Prosecutor’s move. The Attorney General’s memorandum represents the Israeli government’s position on this issue.26 He asserts that there has never been a Palestinian state, and, therefore, there exists no “state” to accede to ICC jurisdiction per the Rome Statute Article 12(3) requirements. Furthermore, by asserting jurisdiction in this case, the Court risks exploitation for illegitimate political gain.27

Following the Prosecutor’s announcement, Israeli Prime Minister Benjamin Netanyahu further condemned the ICC, accusing the Court of antisemitism and implying that the Court supports the annihilation of Jewish people.28 On Twitter, Prime Minister Netanyahu denigrated the Court for being “hostile” towards Israel, and ignoring other countries that violate human rights.29 During a cabinet meeting following the Prosecutor’s announcement, Prime Minister Netanyahu flagged Rome Statute Article 17 complementarity concerns.30

The United States and Australia have both shown support for Israel regarding this investigation. U.S. Secretary of State Mike Pompeo publicly agreed with Israel’s belief that Palestine does not qualify as a sovereign state and thus falls outside of the ICC’s jurisdiction, threatening “consequences” should the ICC continue on that course.31 Additionally, Australia submitted its observations to the Court on the issue of Palestine’s statehood, echoing Israel’s position that Palestine’s accession to the Rome Statute in 2015 did not make it a state, and calling for negotiations to support a two state solution.32

C. Russia

In January 2016, the ICC opened a formal investigation into war crimes and crimes against humanity allegedly committed by both sides during an international armed conflict between Georgia and Russia in South Ossetia. While Georgia ratified the Rome Statute in 2003, Russia is not a State Party. The last phase of the Prosecutor’s preliminary investigation examined considerations raised by Article 17 of the Rome Statute, and whether or not complementarity barred jurisdiction for the case to be brought to the ICC. She found that obstacles and delays hampered Russian and Georgia investigative efforts, and that South Ossetia could not conduct legitimate proceedings as an unrecognized state. Russia’s Ministry of Justice issued a statement confirming that it would not cooperate with the investigation since the Russian parliament had not ratified the Rome Statute, despite signing it in 2001.33 While it did not issue formal sanctions against the ICC, a spokesperson for Russia’s Foreign Ministry said Moscow would be forced to “fundamentally review its attitude towards the ICC,” and was disappointed with the Court’s activity.34 On November 16, 2016 Russia withdrew its signature from the Rome Statute.35

III. Response Classification

The cases of Myanmar, Israel and Russia are analogs to the United States’ position with Afghanistan. Each of these countries did not submit to the jurisdiction of the ICC, but nevertheless may see their citizens one day be defendants in the Court. Instead of utilizing the approach by the United States and issuing harmful sanctions, each of these countries asserted their objections to the Prosecutor’s investigations in ways that may substantively affect their progress. Russia, Israel and Myanmar wield a widely divigent range of State Power, with Russia occupying a permanent seat on the U.N. Security Council and afforded veto power, and Myanmar having one of the lowest ranked world economies.36

All three countries attacked the jurisdictional basis for the Prosecutor’s investigation, a move that can indicate state practice in the future creation of customary international law. Russia and Myanmar both stated that they would not cooperate with any ICC investigations, Myanmar having already refused to support the investigation of the U.N. Fact Finding Mission assigned to its crisis.37 As discussed above, Israel, and potentially Myanmar, may bar jurisdiction from the ICC by conducting their own national prosecutions into the atrocities alleged by the Prosecutor. Russia and Israel launched staunch criticisms against the Court itself, casting doubt on the legitimacy of its prosecutions through accusations of antisemitism, inefficiency, exorbitant costs of upkeep, and politicization of the process. Combined, these measures effectively show disapproval for the ICC’s extension of jurisdiction and can create effective barriers for the Prosecutor’s investigation, thus preserving the encroached country’s sovereignty. It is not necessary to issue further sanctions.

IV. How the United States Should Respond

Should they wish to avoid probing by the ICC, the incoming administration has many tools with which they can respond to the Appeals Chamber’s authorization of an investigation into the situation in Afghanistan. The Biden Administration could appoint its own national prosecution system to investigate atrocities committed by U.S. armed forces in Afghanistan in connection with the armed conflict there. However, these trials must show a good faith effort to hold transgressors accountable for their crimes, as sham trials intended to shield a defendant from liability would be a showing of unwillingness to prosecute per Article 17 of the Rome Statute and thus allow the ICC to assert jurisdiction. Submitting the argument of “no jurisdiction” of the Court implicitly recognizes the ICC’s legitimacy, but doing so would serve the interests of the United States who implicitly acknowledged the Court’s legitimacy when it identified the important role the ICC can play in securing justice for victims of international crimes.38 The United States may choose to make fact-based criticisms about the efficacy and the politicization of the Court. It could refuse to cooperate with ICC investigative mechanisms. Further, the United States could rely on its own precedent set in the ICJ Nicaragua case and refuse to participate in any further proceedings in connection with the case without imposing further punitive sanctions on those affiliated with the ICC through an executive order.

V. Conclusion

The United States has the ability to respond to the ICC’s actions in more productive ways that meet United States foreign policy objectives and diminish any negative effects on the United States for resisting the jurisdiction of the ICC.39 It can echo the actions of Myanmar, Israel, and Russia in objecting to the Court’s exercise of jurisdiction by overseeing its own investigation into alleged crimes committed by the United States in Afghanistan, by continuing its trend of public criticism of the Court, by refusing to cooperate with the Court’s investigation, and through other options addressed earlier in this comment. Biden’s administration should prioritize these measures. If he does not repeal EO 13928, the continuation of this harmful sanctions-based regime will continue to polarize international respect for the United States and isolate the United States from maintaining positive relationships within the international community.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See Afghanistan, ICC, available online (last visited Dec. 18, 2020). ↩

  2. 2.

    John Bolton, National Security Advisor, Speech to the Federalist Society (Sep. 10, 2018), transcript available online, video available online (begins at 1:24:07). ↩

  3. 3.

    Elian Peltier & Fatima Faizi, I.C.C. Allows Afghan War Crimes Inquiry to Proceed, Angering U.S., N.Y. Times, Mar. 5, 2020, available online. ↩

  4. 4.

    Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020), [hereinafter EO 13928], available online. ↩

  5. 5.

    Kevin Jon Heller, Statement Against US Sanctions on ICC Investigations, Opinio Juris (Jun. 30, 2020), available online; Carrie DeCell & Jameel Jaffer, Trump’s Executive Order on the ICC is Illegal, Not Just Shameful, Just Security (Oct. 13, 2020), available online. ↩

  6. 6.

    Heller, supra note 5. ↩

  7. 7.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 17, available online. ↩

  8. 8.

    Id. ↩

  9. 9.

    See Milena Sterio, The Trump Administration and the International Criminal Court: A Misguided New Policy, 51 Case W. Res. J. Int’l L. 201 (Sep. 17, 2019), available online

    (discussing how Trump’s handling of the ICC diverges from previous U.S. foreign interests). ↩

  10. 10.

    Press Release, ICC, ICC Judges Authorise Opening of an Investigation into the Situation in Bangladesh/Myanmar (Nov. 14, 2019) [hereinafter ICC Myanmar Authorization], available online. ↩

  11. 11.

    Id. ↩

  12. 12.

    Param-Preet Singh, What Myanmar Is and Is Not Doing to Protect Rohingyas From Genocide, Just Security (Jul. 23, 2020), available online. ↩

  13. 13.

    ICC Myanmar Authorization, supra note 10. ↩

  14. 14.

    Myanmar Says International Criminal Court has No Jurisdiction in Rohingya Crisis, Reuters, Sep. 7, 2018, available online. ↩

  15. 15.

    Id. ↩

  16. 16.

    Id. ↩

  17. 17.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4, Judgment on the appeal against the decision on the authorization of an investigation into the situation in the Islamic Republic of Afghanistan (AC, Mar. 5, 2020), available online. ↩

  18. 18.

    See Palestinian National Authority, Declaration Recognizing the Jurisdiction of the International Criminal Court (Jan. 21, 2009), available online. ↩

  19. 19.

    Fatou Bensouda, ICC Prosecutor, The Public Deserves to know the Truth about the ICC’s Jurisdiction over Palestine (Sep. 2, 2014), available online. ↩

  20. 20.

    U.N. General Assembly, Application of Palestine for Admission to Membership in the United Nations, A/66/371-S/2011/592 (Sep. 23, 2011), available online. ↩

  21. 21.

    See Report of the Secretary-General, Status of Palestine in the United Nations, U.N. Doc. A/67/738 (Mar. 8, 2013), available online. ↩

  22. 22.

    Press Release, ICC, The Prosecutor of the International Criminal Court, Fatou Bensouda, Opens a Preliminary Examination of the Situation in Palestine (Jan. 16, 2015), available online. ↩

  23. 23.

    Fatou Bensouda, ICC Prosecutor, Conclusion of the Preliminary Examination of the Situation in Palestine, and Seeking a Ruling on the Scope of the Court’s Territorial Jurisdiction (Dec. 20, 2019), available online. ↩

  24. 24.

    Situation in the State of Palestine, ICC-01/18, Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine (PTC I, Jan. 22, 2020), available online. ↩

  25. 25.

    Id. ↩

  26. 26.

    See B’Tselem, The Israeli Attorney General’s Memorandum: Everything the ICC Is Not Meant to Be (Mar. 11, 2020), available online. ↩

  27. 27.

    Office of the Attorney General, State of Israel, The International Criminal Court’s Lack of Jurisdiction Over the So-called “Situation in Palestine” (Dec. 20, 2019), available online. ↩

  28. 28.

    Press Release, Israel Ministry of Foreign Affairs, PM Netanyahu Comments on the Claim by the ICC Prosecutor (Dec. 23, 2019), available online. ↩

  29. 29.

    Benjamin Netanyahu (@netanyahu), Twitter (Jun. 14, 2020, 5:40 AM), available online. ↩

  30. 30.

    Noa Landau, “What About Hamas?”: Fact-checking Israel’s Response to ICC Prosecutor’s Call to Probe War Crimes, Haaretz, Dec. 23, 2019, available online. ↩

  31. 31.

    Pompeo Warns ICC of “Consequences” for Potential War Crimes Probe of Israel, Times of Israel, May 16, 2020, available online. ↩

  32. 32.

    Situation in the State of Palestine, ICC-01/18, Observations of Australia (PTC I, Mar. 16, 2020), available online. ↩

  33. 33.

    Russia Refuses to Cooperate with ICC Investigation into 2008 War Crimes. Tbilisi: Refusal Won’t Hamper Investigation, Agenda.ge, Feb. 2, 2016, available online. ↩

  34. 34.

    Maria Zakharova, Russian Federation Foreign Ministry Spokesperson, Briefing (Jan. 26, 2016), available online. ↩

  35. 35.

    Sergey Sayapin, Russia’s Withdrawal of Signature From the Rome Statute Would Not Shield Its Nationals From Potential Prosecution at the ICC, EJIL Talk (Nov. 21, 2016), available online. ↩

  36. 36.

    2020 Index of Economic Freedom: Burma, Heritage Found., available online (last visited Dec. 18, 2020). ↩

  37. 37.

    Independent International Fact-Finding Mission on Myanmar, UNHRC, available online (last visited Dec. 18, 2020). ↩

  38. 38.

    See United States Delegation, 16th ASP Sess., Statement on Behalf of the United States of America, ASP /16-USA (Dec. 8, 2017), available online. ↩

  39. 39.

    See Sterio, supra note 9. ↩

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