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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?”

Enhancing the International Criminal Court’s Perceived Legitimacy to Soften the U.S. Stance

I. Introduction

Executive Order 13928 issued by U.S. President Donald Trump states that the International Criminal Court’s (ICC) investigation of the situation in Afghanistan is “illegitimate” and “infringe[s] upon the sovereignty of the United States.”1 The U.S. reaction was exceptional for its harshness, but its refusal to cooperate by itself was not. Cooperation is key to the ICC’s work, but the Office of the Prosecutor (OTP) has struggled in many instances over the years to engage constructively with states it claims falls within its jurisdiction.

This comment considers how the Prosecutor could soften the American reaction to the investigation and argues that the ICC’s reputation can shape perceptions of its legitimacy. Where the ICC is perceived as legitimate, severe reactions to its jurisdictional claims may be softened. This comment finds that the American public widely supports the Court, but that a majority people are not aware of it. It suggests that the Court could engage in a sustained public relations effort to communicate what it does, address criticisms directed at it, and highlight its achievements. It concludes that doing this may soften harsh reactions to its claims and facilitate its work.

This comment is organized as follows: Part II discusses the relationship between the Court’s perceived legitimacy and its ability to encourage state cooperation; Part III discusses the American public’s generally positive views of the Court’s despite tensions between the United States and the ICC; and Part IV suggests communications efforts that may help augment awareness of and support for the Court to enhance its perceived legitimacy.

II. The ICC’s Perceived Legitimacy May Shape How States Interact with the Court

The ICC relies on state cooperation. The governing principle of the Court, complementarity, recognizes the sovereign right of States to prosecute cases in national courts.2 The principle is stated in the Rome Statute in the Preamble, Article 1, and in the admissibility test in Article 17. Its duplication in the Statute is less a reflection of legal necessity than a reflection of the hurdles that the drafters of the Statute had to overcome to allay fears that the Court’s jurisdiction might impinge on State sovereignty.3 The ICC does not have the practical power to force states to cooperate and, in turn, non-cooperation hinders complementarity. Without state cooperation, the ICC is unable to adequately conduct investigations, collect evidence, or arrest perpetrators. And non-cooperation consumes resources which could weaken the Court’s ability to pursue other violators of international law. Thus, cooperation is also important for the protection of human rights more generally.

The Court has long faced significant cooperation hurdles with states that have ratified the Rome Statute.4 In working with countries like the United States, which have not ratified the Statute, it is even more futile for the Court to engage with any show of institutional force.5 Any international criminal court is bound to face similar issues because its jurisdiction will run up against the doctrine of state sovereignty which recognizes a state’s exclusive jurisdiction over conduct and persons within its territory. Thus, the Court’s strongest tool to engage with non-cooperating states is persuasion. The Court can persuade non-cooperating states that their interests are aligned with those of the Court to facilitate its operations. To do so, it is important that the actions and authority of the Court are firstly perceived as legitimate.

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To date, the Court has faced significant criticism, even from its supporters. These criticisms have strengthened the arguments of those who oppose it.6 The Court does not have the inherent authority of domestic courts. Its authority is conferred to it by countries which have allowed it to pursue goals that they consider legitimate.7 The perceived failures of the Court embedded within the arguments of its critics raise questions about the Court’s ability to achieve these goals. Thus, unaddressed criticisms erode the Court’s legitimacy. Moreover, being in an openly hostile situation with the United States presents unique challenges to the Court’s reputation. This is because the United States has historically positioned itself as a champion of international criminal justice.8 That it now displays outright hostility to the Court could further erode the Court’s legitimacy and hinder its ability to persuade different states to cooperate in other scenarios in the future. The Court must thus work to address the negative perceptions of its reputation which hamper its perceived legitimacy. Legitimacy, in turn, shapes states’ responses to the Court’s asserted authority. This perceived legitimacy is especially valuable when the Court is not acting in the self-interest of the actors it claims are subject to its jurisdiction.9

The arguments entailed in EO 13928 and in criticisms of the Prosecutor’s Afghanistan investigation are based on concerns that the Court’s actions impinge on national interests and state sovereignty. Furthermore, the Court has been subject to criticisms about bias and jurisdictional irregularities which are also inherent in critics’ arguments when they question the Prosecutor’s motives in light of the comparative severity of the conduct at issue to other controversies around the world. These criticisms and more, like criticisms on the Court’s efficiency, have plagued the Court’s reputation for several years while its achievements have mostly gone under the radar. If the Court disagrees with the way it has been framed in the public debate, it must engage in a sustained public relations effort to disseminate truthful information about its activities and dispel inaccurate perceptions that hamper its legitimacy. Currently, such information about the Court is restricted to the small communities in law and academia who follow its work. The Court emphasizes that it is combating impunity to better the world, but it has not communicated this mission to people around the world whose lives may have been improved by that mission and yet still may not know or understand what it is.

III. The American Public’s Longstanding Support for the ICC

The United States and the ICC have always had an uneasy relationship. From early on, the United States voiced its concern that the ICC’s jurisdiction over its nationals, particularly U.S. military personnel, impinged on its national sovereignty.10 It did not ratify the Rome Statute and the Bush Administration pursued agreements with the U.N. Security Council as well as bilateral agreements with individual states so that U.S. personnel would not be at risk of ICC prosecution.11 Without the U.S.’s support, the ICC has missed out on the former’s considerable capabilities which could have aided the Court with its investigations of international crimes.

It is not altogether surprising that the United States and the ICC are in the position they are in today which the United States has long voiced concerns about. Even though the United States has no duty to cooperate with the ICC under Articles 86 or 88 of the Rome Statute, which only obliges State Parties to cooperate, Article 12 allows the ICC to exercise jurisdiction over nationals of non-party states if the conduct at issue occurred on the territory of a state party.12 There are 123 countries that are party to the Rome Statute. Given the geographic scope of the engagements of the United States and that of the Court, it was likely that the two would come into conflict.13 Nevertheless, Article 17 of the Rome Statute and the principle of complementarity only permits the Court’s jurisdiction where national courts are unable or unwilling to investigate or prosecute the conduct at issue.14 Thus, if the Court’s concerns are perceived as legitimate, the United States may be more inclined to investigate conduct at issue so that the Court need not. This could avoid jurisdictional disputes.

The Court knew that the United States would not cooperate with its investigation concerning alleged crimes occurring on the territory of other State Parties to the Rome Statute. Indeed, in anticipation of cooperation challenges, the ICC Pre-Trial Chamber originally rejected the Prosecutor’s request for authorization to investigate alleged crimes related to the United States in Afghanistan. The Pre-Trial Chamber cited “the scare cooperation obtained by the Prosecutor […] even for the limited purposes of a preliminary examination” as a factor that indicates that an investigation will not be in the “interests of justice” because it is “not feasible and inevitably doomed to failure.”15 The Appeals Chamber decision on March 5, 2020, which reversed the Pre-Trial Chamber’s decision to stop the investigation, did not contest the latter’s finding on the feasibility of the investigation, but rather held that it was inappropriate for the Pre-Trial Chamber to make an “interests of justice” determination at all.16 Thus, the U.S.’s recent reaffirmation that it will not cooperate with the Prosecutor by itself is neither alarming nor unexpected, even if its reaction was particularly harsh.17

Despite the ongoing problems in the relationship between the United States and the ICC, American public opinion on the ICC has not been negative. One survey in 2010 found that the majority of the U.S. public, across the political spectrum, supported the U.S.’s participation in the ICC even though the United States was not participating in the Court.18 A more recent survey conducted by Ipsos for the American Bar Association’s ICC Project found that American support for the ICC was growing, and that overall perceptions of the ICC were largely not impacted by the potential of an Afghanistan investigation in 2018.19 Nevertheless, the study found that only 45% of Americans were aware of the ICC even though this was an increase from the number of Americans who were aware of the Court in 2014.20 The Chicago Council on Global Affairs confirms both surveys. In its survey conducted in July 2018, it found that three in four Americans support U.S. participation in the agreement on the ICC and, moreover, finds that this support has remained steady since the Rome Statute entered into force in 2002.21 Other studies have shown that using human rights and national sovereignty arguments to frame arguments about the Court can, however, shape opinions about its activities.22 Thus, there is value in countering arguments that negatively frame the Court. This will give individuals the opportunity to make up their own minds from the various frames they encounter in the public debate.

Overall, the surveys indicate that the American public seems to be united with some sort of long-standing support for the Court despite continuing tensions between the United States and the ICC. Thus, while the ICC cannot motivate cooperation from the United States by the use of force or threat, it might soften the U.S.’s approach by effectively communicating its activities and confirming its role as a court of last resort to the American public. The United States played an important role in international criminal justice before the Rome Statute. And it has voluntarily cooperated with the Court in the past, for example, handing over Lord’s Resistance Army commander Dominic Ogwen, who was subject to an arrest warrant by the ICC, to the Central African Republic authorities.23 Thus, ICC and U.S. interests aren’t always misaligned. Although elections may never be decided on the public’s opinion on the ICC, where there is adequate information about the Court and support for its activities, the United States may be more open to negotiating with the ICC for mutually satisfactory outcomes, or at least it may soften the hostile stance it has recently taken in EO 13928 to avoid the reputational costs of not doing so.

IV. Public Relations Messaging that May Enhance and Sustain the Court’s Legitimacy

The ICC has enjoyed support from the American public for some time. However, a large portion of the public still remains unaware of the Court. The ICC could elevate its public profile so that more people understand its mandate and how it operates. The ICC must also address criticisms that the Court impinges on national sovereignty by emphasizing that it is a Court of last resort. Although ICC communications make statements to this effect, more could be done to explain how complementarity works, for example with audiovisual communications, infographics, or with more precise statements that thoroughly explain when the Court’s jurisdiction kicks in. This may help counter perceptions that the Court is unilaterally imposing its will upon States in the furtherance of ambiguous and suspect goals like ending impunity.24

The United States has long stated that promoting respect for human rights is a central goal of its foreign policy.25 To show that its interests are aligned with that of the United States on this important goal for both, the Court could make the effort to publicize its achievements to that effect. For example, the Court has played a role in improving the capacity of nations to deal with human rights violations.26 Additionally, the ICC has striven to give victims a key role in the criminal process and a trust fund was established to support victims of crimes that are under the ICC’s jurisdiction.27 The work of such programs and their connection to the Court could be made more visible.28 The ICC has also helped develop a historical narrative of human rights crimes which goes towards contributing to feelings that justice has been served for those crimes.29 Widening the audience of these important and incremental achievements will help towards demonstrating that the ICC pursues goals that are aligned with U.S. policy and that are likely to be supported by the American public.

The ICC has experience crafting messages to specific audiences where it has been motivated to do so. For example, the Court encountered cooperation challenges with African states and the African Union because of the belief held by these states and several critics that the Prosecutor was unfairly focused on African countries. In response, the Prosecutor developed outreach programs so that its role was better understood by impacted communities.30 A similar effort could be made for the U.S. audience and any other region affected by the Court’s activities. A preliminary goal of effective communications is to target an audience. However, currently most of the ICC’s media content displayed on its website, Twitter, and Instagram account is appealing only to the Court’s existing followers. More engaging content that is interesting to a wider audience outside of the legal field may improve the public’s access to knowledge about the ICC. For example, more work could be done to promote and even motivate initiatives like the victim’s trust fund. The ICC, as an international institution, embodies and furthers values that go beyond its activities in a single criminal proceeding. Thus, it can disseminate information about these broader human rights accomplishments and goals to appeal to a wider audience. This information together with other engaging content can be disseminated on social platforms, through the media, or by cooperation with state institutions, nongovernmental organizations, and civil society. Communicating engaging content that is relevant to a wider audience truthfully and accurately won’t jeopardize the Court’s apolitical stance. The Court could pursue these strategies while also continuing to engage with the legal community as it does today and while continuing to enhance the legal education of its current followers.

Finally, the OTP could bring visibility to scenarios where state cooperation has facilitated its work. The OTP could encourage cooperation by positively reinforcing cooperative behavior even in those situations where it found that cooperation was not always ideal. This could advance the sense that cooperation is a standard or a norm that is upheld in the international community which may encourage similar behavior from other actors involved in future investigations.

V. Conclusion

It was always the case that the ICC faced challenges in its relationship with the United States However, the culmination of tensions embodied in EO 13928 may provide the Court with an opportunity to improve relations by persuading the American audience that its intentions are not to impinge on sovereignty and that its objectives are not necessarily misaligned with U.S. objectives. It may do this by enhancing public awareness of the Court and widening public support for its activities.

The ICC has understood the importance of effective outreach and transparency to its perceived legitimacy. For example, it broadcasts criminal proceedings online so that they are seen by communities affected by the crimes. While this is an important way to build a relationship with the public and ensure transparency, it is also an example of how the Court’s communications cater to its existing following. Failing to reach out more broadly to a wider audience may hamper the Court’s perceived legitimacy and its ability to convince states that cooperation with the Court is in their interest. The American public, where aware of the Court, has widely supported its activities. This support has not waned even as tensions between the ICC and the United States has escalated. Moreover, U.S. foreign policy seeks to advance human rights, an area where the Court has also made important achievements. The Court could build on these shared grounds to smooth over tensions with the United States and align the latter’s interests with its own which would facilitate its work in the current situation and in future scenarios with different states as well.

The ICC has been subject to criticism over the years which it has not countered. It could address the criticism while also shining light on its achievements which have not received the same amount of attention and focus. It is apparent that the Court’s achievements have received limited visibility by large numbers of the American public who have broad access to information but who are still unaware of the Court’s existence. The ICC has several platforms to conduct effective outreach. These may be its social media platforms or it may engage with the media on issues that appeal to wide audiences, for example, those that highlight the Court’s role in programs that support victims. And, the Court can positively reinforce cooperation to incentivize other states to do the same.

The Court is bound to come under attack because its jurisdictional claims will conflict at some point with the self-interest of states. It should expect reactions that undermine its legitimacy or reputation. Public relations efforts that are thoughtful and sustained may help towards softening harsh reactions. It is not a guarantee that enhancing the ICC’s perceived legitimacy will encourage cooperation and facilitate its work in every circumstance, but it is quite possible that enhancing the overall perceptions of the legitimacy of the Court will soften severe responses that impede its work from outset.

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

  1. 1.

    Executive Order No. 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020), available online. ↩

  2. 2.

    See 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. 1, available online. ↩

  3. 3.

    See Mohamed M. El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law, 23 Mich. J. Int’l L. 869 (2002), available online. ↩

  4. 4.

    See, e.g., Tom White, States “Failing to Seize Sudan’s Dictator Despite Genocide Charge,” The Guardian, Oct. 21, 2018, available online

    (about the failure of state parties to the ICC to execute the Court’s request for the arrest of President Omar Al-Bashir of Sudan). ↩

  5. 5.

    See, e.g., Rome Statute, supra note 2, Art. 87(7)

    (governing non-cooperation issues and provides limited recourse generally, even for State Parties).

    See also Olympia Bekou, Dealing with Non-cooperation at the ICC: Towards a More Holistic Approach, 19 Int’l Crim. L. Rev. 911 (Nov. 28, 2019), paywall, archived, doi

    (arguing that the Statute constrains the Court by restricting the options that are available to it when States do not cooperate).

    See generally, Rome Statute, supra note 2, Art. 87(5)

    (governing non-cooperation with States that are not party to the Statute but, unlike the United States, this article considers States that have entered into an ad hoc arrangement with the Court). ↩

  6. 6.

    Jeremy Sarkin, Reforming the International Criminal Court to Achieve Increased State Cooperation in Investigations and Prosecutions of International Crimes, 9 Int’l Hum. Rts. L. Rev. 27, 35 (May 24, 2020), paywall, doi

    (citing criticisms of the ICC by its supporters and opponents). ↩

  7. 7.

    See, e.g., Kjersti Lohne, Global Civil Society, the ICC, and Legitimacy in International Criminal Justice, in The Legitimacy of International Criminal Tribunals 449, 450 (Nobuo Hayashi & Cecilia M. Bailliet eds., Feb. 2017), available online, doi. ↩

  8. 8.

    See e.g., Christopher Hale & Maanasa K. Reddy, A Meeting of the Minds in Rome: Ending The Circular Conundrum of the U.S.–ICC Relationship, 12 Wash. U. Global Stud. L. Rev. 581, 583 (2013), available online

    (arguing that prior to the passage of the Rome Statute, the United States was an ardent supporter of international justice and chiefly responsible for the creation of the field with its achievements at the Nuremberg trials). ↩

  9. 9.

    See Allen Buchanan & Robert O. Keohane, The Legitimacy of Global Governance Institutions, 20 Ethics & Int’l Aff. 405 (Dec. 2006), paywall, archived, doi. ↩

  10. 10.

    See Ellen Grigorian, Cong. Research Serv., RL30020, The International Criminal Court Treaty: Description, Policy Issues, and Congressional Concerns 17 (Jan. 6, 1999), available online. ↩

  11. 11.

    See Jennifer K. Elsea, Cong. Research Serv., RL31495, U.S. Policy Regarding the International Criminal Court 23 (Aug. 29, 2006), available online. ↩

  12. 12.

    See Rome Statute, supra note 2, Art. 12(2)(a). ↩

  13. 13.

    See e.g., Gregory P. Granger, The ICC and the US Global Military Command Structure: Is Cooperation Possible?, 2 Eyes on the ICC 65, 77 (2005), paywall

    (predicting that the ICC and U.S. military command structure would come into contact on multiple occasions worldwide). ↩

  14. 14.

    Rome Statute, supra note 2, Art. 17. ↩

  15. 15.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Islamic Republic of Afghanistan, ¶ 90 (PTC II, Apr. 12, 2019), available online. ↩

  16. 16.

    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, ¶ 46 (AC, Mar. 5, 2020), available online. ↩

  17. 17.

    See e.g., Complaint, Diane Marie Amann, Milena Sterio, Margaret deGuzman, Gabor Rona v. Donald J. Trump et al., 1:20-cv-08121, ¶ 90 (S.D.N.Y., Oct. 1, 2020), available online

    (arguing that EO 13928 is ultra vires). ↩

  18. 18.

    See Harry M. Rhea & Ryan C. Meldrum, United States Public Support for the International Criminal Court: A Multivariate Analysis of Attitudes and Attributes, 37 U. Pa. J. Int’l L. 739, 751–55 (2015), available online. ↩

  19. 19.

    Ipsos, Number of Americans Who Support the ICC Grows 2 (Apr. 11, 2018), available online. ↩

  20. 20.

    Id. at 1. ↩

  21. 21.

    See Craig Kafura, Lily Wojtowicz & Karen Whisler, The ICC is Dead to John Bolton, But Not the Public, Chi. Council on Global Aff. (Sep. 10, 2018), available online. ↩

  22. 22.

    See e.g., Kelebogile Zvobgo, Human Rights versus National Interests: Shifting US Public Attitudes on the International Criminal Court, 63 Int’l Stud. Q. 1065 (Aug. 13, 2019), paywall, preprint (Nov. 2018) available online, doi. ↩

  23. 23.

    See e.g., Jen Psaki, U.S. Dept. of State Spokesperson, Transfer of Dominic Ogwen to the International Criminal Court (Jan. 20, 2015), available online. ↩

  24. 24.

    See e.g., Marieke de Hoon, The Future of the International Criminal Court. On Critique, Legalism and Strengthening the ICC’s Legitimacy, 17 Int’l Crim. L. Rev. 591, 598 (Jun. 27, 2017), available online, doi

    (“Credos like ‘ending impunity’ and ‘delivering justice’ would never be found credible in a domestic criminal law system”). ↩

  25. 25.

    Human Rights and Democracy, U.S. Dept. of State, available online (last visited Dec. 18, 2020). ↩

  26. 26.

    Sarkin, supra note 6, at 41

    (discussing how the Rome Statute has been applied as the operative law and basis for convictions in some domestic jurisdictions). ↩

  27. 27.

    Id. at 36. ↩

  28. 28.

    See id.

    (arguing that too little is known about these programs). ↩

  29. 29.

    See id. at 37. ↩

  30. 30.

    Patrick Vinck & Phuong N. Pham, Outreach Evaluation: The International Criminal Court in the Central African Republic, 4 IJTJ 421 (Sep. 11, 2010), available online, doi. ↩

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