B. Examples of External Constraints on Judicial Decisions

The seminal American Supreme Court case, Marbury v. Madison,5 is one example of a court navigating legal issues with an eye on protecting its sociological legitimacy. The case concerned the failure of the new administration to deliver a former President’s judicial appointments. Recognizing the limits of the Court’s enforcement power. Chief Justice Marshall decided that the Court had no jurisdiction to issue the requested writ of mandamus. While the Supreme Court could have ordered the delivery of the appointment, such a decision would have likely been ignored by the current administration—a response which would have shown the new Court as an ineffective and weak institution.6 Similar cases exist among international courts. In the Lotus case, the Permanent Court of International Justice (PCIJ), the predecessor of the ICJ, considered a case involving conflicting claims to jurisdiction.7 The French captain of the ship involved in a collision on the high seas was in Turkish custody but France also claimed jurisdiction based on citizenship. The PCIJ noted that international law is a permissive system which allows for multiple claims to jurisdiction, i.e. both France and Turkey had a legitimate claim to jurisdiction. More recent examples include the European Court of Human Rights’ Article 6 jurisprudence8 as well as the ICJ’s resistance to address the issue of secession in its Kosovo Advisory Opinion.9 All of these examples demonstrate that courts, both domestic and international, are implicitly aware of their limitations to enforce judgments and the negative effects of non-compliance on their legitimacy.

II. Previous Modes and Effects of U.S. Non-Cooperation and Non-Compilations: ICJ Case Study

Now that we have considered cases where courts showed restraint in their judgments, let’s consider situations where courts have taken on contentious issues and arrived at judgments despite a foreseeable backlash. To help with the upcoming analysis of the U.S. EO on the legitimacy of ICC, this section will focus on U.S. defiance of the ICJ. The ICC and the ICJ have their fair share of differences and, to the extent that these differences are material, they will be discussed later on. However, the two courts are similar enough where the analysis of similar situations involving the ICJ may offer valuable insight to the current situation of the ICC. The ICJ, like the ICC, is an international court which enjoys relatively wide support and has broad jurisdiction.10 Both courts have a relationship with the U.N.: the Rome Statute allows the U.N. Security Council (UNSC) to refer cases to the ICC11 while the Charter of the ICJ gives that court advisory jurisdiction over questions posed by the U.N..12 Furthermore, both courts rely on the U.N. for support with enforcement.13 This lack of enforcement power renders these courts equally susceptible and similarly sensitive to defiance.

The most noteworthy case of U.S. defiance prior to the EO is the U.S. reaction to the Nicaragua case at the ICJ. In 1986, Nicaragua sued the United States at the ICJ alleging that U.S. support of the Contras was a violation of their sovereignty and the international prohibition against the use of force contained in Article 2(4) of the U.N. Charter. The United States had signed the treaty accepting the court’s decision as binding, but with the exception that the court would not have the power to hear cases based on multilateral treaty obligations unless it involved all parties to the treaty affected by that decision or the United States consented to jurisdiction. This reservation precluded the court from adjudicating a claim based on the U.N. Charter. However, the court disposed of this obstacle by concluding that there is an equivalent prohibition on the use of force under customary international law which is not covered by the U.S. reservation. The United States refused to participate in the merits stage,14 denounced the court as an illegitimate institution,15 and withdrew their consent to compulsory jurisdiction altogether.16 In its judgment, the court ruled against the United States and awarded damages to Nicaragua. The United States refused to pay any reparations, continuously attacked the legitimacy and jurisdiction of the court, and used its power as a Permanent Member of UNSC to thwart any efforts to enforce the judgment. Between 1982–1986, the United States blocked six separate UNSC Resolutions calling for full and immediate compliance with the court’s judgment.17 However, the risk of taking on a powerful player has paid off for the ICJ. International support arguably increased the court’s legitimacy. Even absent enforcement, the judgment signaled that the court would equally apply the law to all states:

By adjudicating in favor of a poor, Third World country like Nicaragua, the ICJ has opened up an option to other Third World States whose citizens may feel that in this era of sovereign equality, some sovereigns are more equal than others. Aware of its rights as an international person, Nicaragua presented a well-argued case in a peaceful forum often regarded as an instrument of the First World.18

Despite the lack of enforcement power, the ICJ’s sociological legitimacy increased. As a reflection of this increase in legitimacy, more cases poured into the court.19 The judgment stood the test of time and is still one of the most important cases on the use of force and state responsibility.20

Withdrawing from treaties which grant the ICJ jurisdiction and ignoring any judgments by the court, like in the Nicaragua case, has been somewhat of a U.S. strategy in dealing with the ICJ. For other examples, in reaction to LaGrand21 and Avena,22 the United States has withdrawn from the Optional Protocol to the Vienna Convention on Consular Relations which gives the ICJ jurisdiction over cases arising from disputes regarding the Convention. In these cases, Germany and Mexico, respectively, sued the United States for failure to notify the consulates of the arrest of foreign nationals in violation of the Vienna Convention on Consular Relations. Both nationals were on death row, awaiting their executions. Germany and Mexico asked for a preliminary injunction to prevent the execution of the individuals while the matter was pending, which the ICJ granted. However, the United States did not comply and both defendants were executed prior to a judgment in the case. Following a number of similar issues, the United States withdrew from the Vienna Convention on Consular Relations altogether. Most recently, the ICJ ruled against the United States regarding the legality of U.S.-imposed unilateral sanctions on Iran following the failed Nuclear Deal. The court ordered the United States to lift the sanctions. The United States failed to comply with the judgment and withdrew from the bilateral treaty (the Treaty of Amity, Economic Relations and Consular Rights) that granted the ICJ jurisdiction over this particular matter.23

III. Effects of the EO on the ICC’s Sociological Legitimacy

A. Legitimacy Struggles of the ICC

Although 123 States are parties to the Rome Statute and continue to engage with the Court at the yearly Assembly of States Parties, the ICC has also garnered its fair share of criticism both from state parties and non-state parties. One of the sources of criticism is the disproportionate amount of cases from Africa leading to accusations of neo-colonialism. To date, defendants before the Court have exclusively been from African states. This perceived bias, coupled with other sources of tensions such as the issue of head of state immunity, led to the withdrawal of Burundi and threats of withdrawal from Kenya, South Africa, Namibia, and Gambia. Furthermore, the African Union has explicitly rejected the ICC’s view that head of state immunity is inapplicable to proceedings before the Court.24 Non-compliance with arrest warrants has also been a significant struggle. South Africa and Jordan have both failed to arrest Omar Al-Bashir despite repeated calls to do so, and both have been reprimanded by the Pre-Trial Chamber for their non-cooperation.

Non-state parties, including the United States, Russia, Myanmar, and Israel, have repeatedly objected to the exercise of the ICC’s jurisdiction without their consent. Former State parties—specifically, Burundi and the Philippines—have withdrawn from the Rome Statute after the opening of investigations. In a reaction similar to the EO, President Duterte of the Philippines has even threatened to arrest Fatou Bensouda if she enters the country.25

B. Possible Positive and Negative Effects of the Executive Order

So, given these pre-existing challenges, what effect, if any, will the EO have on the legitimacy of the ICC in particular? In large part, the answer to this question depends on the response from the international community, the power relations between the actors, and the availability of enforcement mechanisms.

On one hand, the EO reveals weaknesses in the structure of the ICC and international law in general. Absent an international police force and dependent on state parties for funding, international courts depend on state support much more than national courts. As does the ICJ, the ICC depends on the UNSC for enforcement. For instance, state parties can be referred to the UNSC and sanctioned for non-compliance. Some scholars argue that the United States could similarly be sanctioned under Article 70 of the Rome Statute, which gives the Court jurisdiction over offenses against the administration of justice.26 Others claim that this article is only applicable to state parties.27 Regardless, both sides agree that this avenue is unlikely given that the United States is one of the Permanent Members of the UNSC and, as such, can easily veto any request for sanctions. The fact that the United States is seemingly immune to the ICC’s reach and cannot be sanctioned for misbehavior is reminiscent of the failure of Nicaragua’s repeated efforts to enforce the ICJ judgment. Like here, post-Nicaragua, the U.S.’s power as a Permanent Member prevented any attempts from effectuating the judgment. The reality that some powerful states are able to get away with such blatant non-compliance where other states may be sanctioned for the same behavior, may lead to disillusionment with the Court and its ability to effect change.

On the other hand, the EO creates a martyr out of the ICC by testing the ideological commitment of the institution to its mission—ending impunity for international crimes—even when those crimes are committed by powerful states. The OTP’s pursuit of these cases against Permanent Members of the UNSC—Russian crimes in Georgia, UK involvement in Iraq, and the United States in Afghanistan—offer some sort of protection for weaker states. Similarly to how, in Nicaragua, the ICJ demonstrated a willingness to stand up to powerful states and apply the law in a fair manner, the determination of the OTP, even in the face of the EO, demonstrates a commitment to the ideals for which the Court stands. Furthermore, the Court’s sociological legitimacy is mostly dependent on the perceptions of state parties and should not be based on the United States. Although the United States has offered to support the Court in some ways in the past, it has always opposed the Court’s jurisdiction. States parties, on the other hand, have continued to support the Court and condemn U.S. actions. Ten members of the UNSC and key U.S. allies including the European Union, France, Netherlands, and the UK have issued statement expressing support for the ICC and urging the United States to withdraw the EO.28

Conclusion

This comment has examined the possible effects of the EO on the sociological legitimacy of the ICC. Unlike normative legitimacy, sociological legitimacy refers to perceptions of legitimacy. As such, sociological legitimacy is likely to shift over time and is vulnerable to the effects on non-cooperation and non-compliance and the increased perceptions of judicial weakness resulting from the lack of available enforcement mechanisms. However, sometimes, like in the Nicaragua case, States can react to the non-compliance of one state in a manner that denounces the non-compliance and strengthens the court’s legitimacy as a result. Therefore, whether the EO increases or decreases the legitimacy of the ICC depends on the available enforcement mechanism (or lack thereof) and the reactions of other states. The lack of enforcement mechanisms required to compel the United States to cooperate, or even sanction its efforts to thwart the administration of justice, may result in an unsuccessful investigation and, thus, reveal the weaknesses of the Court and lead to a certain level of disillusionment. On the other hand, the Court could benefit from the determination to prosecute powerful states, like the United States, even in the face of draconian sanctions, especially considering previous allegations of selective prosecution.

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

1. 1.

   Beth Van Schaack, The Int’l Criminal Court Executive Order: Global Reactions Compiled, Just Security (Sep. 1, 2020), available online. ↩

2. 2.

   Harlan Grant Cohen, Andreas Follesdal, Nienke Grossman & Geir Ulfstein, Legitimacy and International Courts—A Framework, in Legitimacy and International Court 4 (Nienke Grossman et al. eds., Feb. 2018), paywall, doi. ↩

3. 3.

   Id. ↩

4. 4.

   Id. ↩

5. 5.

   William Marbury v. James Madison, 5 U.S. 137 (Feb. 24, 1803), available online. ↩

6. 6.

   Nicholas Mosvick, Marbury v. Madison and the Independent Supreme Court, Const. Daily (Feb. 24, 2020), available online. ↩

7. 7.

   The Case of the S.S. Lotus (France v. Turkey), Judgment, 1927 PCIJ Series A, No. 10 (Sep. 7, 1927), available online. ↩

8. 8.

   E.g. Susan Nash, Balancing Convention Rights: P.G. and J.H. v. United Kingdom, 6 Int’l J. of Evid. & Proof 125, 125 (Mar. 1, 2002), available online, doi

   (explaining that the Court’s approach to the right to a fair trial (Art. 6 of the European Convention on Human Rights), established in the cases of Schenk v. Switzerland and Khan v. United Kingdom, is not to give a ruling on whether evidence is properly admitted, but to determine whether the proceedings as a whole, including the way in which the evidence was gathered, were fair). ↩

9. 9.

   Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 141 I.C.J. Rep. 403 (Jul. 22, 2010), available online. ↩

10. 10.

    Statute of the International Court of Justice, Art. 36, 59 Stat. 103 (Jun. 26, 1945) [hereinafter ICJ Statute], available online

    (providing that the ICJ has jurisdiction over conflicts involving the U.N. Charter and a number of treaties as well as compulsory jurisdiction over matters involving states that have accepted compulsory jurisdiction);

    see Declarations Recognizing the Jurisdiction of the Court as Compulsory, ICJ, available online (last visited Dec. 24, 2020)

    (listing the seventy-four countries who have accepted compulsory jurisdiction). ↩

11. 11.

    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. 13, available online. ↩

12. 12.

    ICJ Statute, supra note 10 at Art. 96(2)

    (“Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities”). ↩

13. 13.

    United Nations Charter Art. 94 ¶ 2, available online.

    (As illustrated in Nicaragua, infra note 14, “if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”). ↩

14. 14.

    Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), Judgment, 1986 ICJ 14 (Jun. 27, 1986) [hereinafter Nicaragua], available online. ↩

15. 15.

    U.S. Walks Out of World Court Nicaragua Case, L.A. Times, Jan. 20, 1985, available online. ↩

16. 16.

    Id. ↩

17. 17.

    Michael J. Berlin, U.S. Vetoes Nicaraguan Resolution On Compliance With Court Decision, Wash. Post, Aug. 1, 1986, available online. ↩

18. 18.

    Anna Leah Fidelis T. Castãneda, From Prerogative to Prohibition: Article 2(4) As Customary International Law in Nicaragua v. U.S., 38 Ateneo L.J. 1, 69 (1993), available online. ↩

19. 19.

    Mary Ellen O’Connell, The Nicaragua Case: Preserving World Peace and the World Court in International Law Stories 339, 367 (John E. Noyes, Laura A. Dickinson & Mark Weston Janis, eds., 2007). ↩

20. 20.

    Id. ↩

21. 21.

    LaGrand (Germany v. United States), 2001 ICJ 466 (Jun. 27, 2001), available online. ↩

22. 22.

    Avena and Other Mexican Nationals (Mexico v. United States), Order, 2008 ICJ (Jul. 16, 2008), available online. ↩

23. 23.

    Stephanie van den Berg, U.S. To Challenge World Court’s Jurisdiction in Iran Sanctions Case, Reuters, Sep. 14, 2020, available online. ↩

24. 24.

    Institute for Security Studies, Peace & Security Council Report 5–6 (Feb. 16, 2016), available online; Coalition for the International Criminal Court, Report of the 15th ASP Session (Mar. 8, 2017), available online. ↩

25. 25.

    ‘I Will Arrest You’: Duterte Warns ICC Lawyer to Steer Clear of Philippines, Reuters, Apr. 12, 2018, available online. ↩

26. 26.

    Sergey Vasiliev, The Legal Line Crossed in Bolton’s Attack on the ICC, Just Security (Sep. 17, 2018), available online. ↩

27. 27.

    Brian L. Cox, Exploring Some Limitations to the ICC’s Ability to Charge US Officials with Contempt, Just Security (Aug. 5, 2020), available online. ↩

28. 28.

    Beth Van Schaack, supra note 1. ↩