US Sanctions Against the International Criminal Court: Where is International Law Going?

As I discussed previously in the JURIST—Professional Commentary, September 15, 2020, President Trump is already engaged in an unprecedented offensive against the ICC. In June 2020, he authorized economic sanctions against officials of the ICC to dissuade the jurisdiction from prosecuting the American military for their involvement in the conflict in Afghanistan. Such an act in international law was an attempt to undermine and interfere with the court’s judicial and prosecutorial independence of international justice. (Please see my commentary in JURIST.)

The unilateral sanction was a crucial part of Trump’s administration’s foreign policy. Accordingly, the previous administration interpreted international law in a not accurate manner in the multilateral world. As a result, the international community, including a vast majority of state parties to the Rome Statute of 1998, expressed their opposition to Trump’s sanction.

Under President Biden’s administration, the United States’ relationship with the ICC is likely to differ from the previous administration. The Biden administration is generally in favor of international criminal justice and the ICC’s role in this regard. This measure will help the UN and international institutions enforce and implement international law in a collective approach. (Please see my commentary in JURIST)

The main issue here is how international law could prevent coercive acts directed to the international criminal justice system? How to avoid future contestations of the legitimacy of the ICC by member states or even by non-member states?

To avoid such an illegal act in international law, it must therefore be a legal obligation or common practice based on customary international law or Jus cogens. In this perspective, can we expect to consider international criminal law as a lex superior?