The U.S. Sanctions Question — Comments

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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?”

I. Introduction

On June 11, 2020, President Donald Trump issued Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, (EO 13928) which empowers the Secretary of State to designate foreign persons who he determines have assisted or engaged in efforts by the International Criminal Court (ICC) to investigate or prosecute American citizens or citizens of American allies.1 EO 13928 similarly prohibits “the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to [the Executive Order]”.2 EO 13928 was issued as a response to the ICC’s “illegitimate assertions of jurisdiction over the personnel of the United States and certain of its allies” because these actions “threaten to infringe upon the sovereignty of the United States and impede the critical national security and foreign policy work of the United States government and its allied officials, and thereby threaten the national security and foreign policy of the United States.”3 In order to prevent this claimed threat, EO 13928 seeks to “impose tangible and significant consequences on those responsible for the ICC’s transgressions.”4 Following the issuance of EO 13928, the Secretary of State designated Fatou Bensouda, the Prosecutor of the International Criminal Court, and Phakiso Mochochoko, head of the ICC’s Jurisdiction, Complementarity, and Cooperation Division, under section 1(a) of EO 13928.

Section 3 of EO 13928 unconstitutionally restricts speech by American citizens. The First Amendment prohibits the enactment of laws “abridging the freedom of speech.”5 In particular, content-based restrictions are presumptively invalid.6 A restriction on speech is content-based if the law applies to particular speech because of the topic discussed or the idea or message expressed or if it requires enforcement authorities to examine the content of the message to determine whether a violation has occurred.7 Beyond content-based restrictions, a viewpoint-based restriction—that is, the government targets the particular views taken by the speaker—is an “egregious form of content discrimination.”8 Once a restriction is determined to have been content-based, the law must pass strict scrutiny, which is to say that it may be justified only if the government proves that the restrictions are narrowly tailored to a compelling government interest.9

II. EO 13928 is Subject to Strict Scrutiny

EO 13928 is a content-based restriction. The law cannot be enforced without examining the content of the speech being restricted. Section 3 of EO 13928 prohibits “the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to [the Executive Order].”10 In order to enforce such a prohibition, an enforcement authority must determine whether the content of the speech in question constitutes “services by, to, or for the benefit” of persons designated under EO 13928. An individual may want to speak to the ICC personnel designated under EO 13928, and whether they may do so under EO 13928 depends on what they say.11 If an individual’s speech to the designated ICC officers constitutes “services by, to, or for the benefit” of those officers, the speech is barred.12 It is rare that a regulation restricting speech because of its content will ever be permissible.13

Moreover, EO 13928 goes beyond mere content-discrimination to approach actual viewpoint discrimination. While the United States Supreme Court has held that content-based restrictions are presumptively unconstitutional, viewpoint-based restrictions are even more disfavored.14 EO 13928’s terms demonstrate its disapproval of the viewpoint that the ICC can or should exercise jurisdiction over American personnel or personnel of American allies.15 If an individual advocates for the position that the ICC does not and should not have jurisdiction over American or allied personnel, such speech could hardly be considered to constitute the provision of “services by, to, or for the benefit of” the designated ICC officials. On the contrary, speech advocating for the exercise of such jurisdiction—even when made independent of any coordination with the designated ICC officials—could constitute such services “for the benefit of” such officials based on the plain language of the statute and the lack of any further specified definition of “services.” The fact that the prohibitions in section 3 of EO 13928 appear to be viewpoint-based weighs against the constitutionality of the provision. The Supreme Court has insisted that “laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference.”16 Even if section 3 of EO 13928 is not viewpoint-based, it is nonetheless subject to strict scrutiny.

III. Strict Scrutiny Analysis

Because EO 13928 is at least a content-based, if not also viewpoint-based, speech restriction, it is subject to strict scrutiny, which “requires the government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”17 The first step of this analysis is to determine whether the government’s interest in enforcing section 3 of EO 13928 is indeed compelling. On its face, EO 13928 appears to satisfy this first step of analysis. EO 13928 expressly identifies the protection of American sovereignty and the maintenance of American foreign policy relationships as the government’s interest in issuing EO 13928.18 Generally, the Supreme Court has deferred to the other branches of government in identifying important American foreign policy and national security interests.19 More specifically, when the government seeks to prevent imminent harms in the context of national security and international relations, it “is not required to conclusively link all the pieces in the puzzle before [the Supreme Court] grant[s] weight to its empirical conclusions.”20 Nonetheless, the Supreme Court’s precedents clearly state that “concerns of national security and foreign relations do not warrant abdication of the judicial role.”21 In Holder v. Humanitarian Law Group, the Supreme Court quickly disposed of the issue of whether the government’s interest was compelling and held unequivocally that the government’s interest in combating terrorism is a compelling one.22 However, the interests implicated by EO 13928 do not reach the level of the government’s interest in combating terrorism. The government’s interest in protecting the life and limb of its citizens is undoubtedly “of the highest order.”23 However, unlike the government’s interest in combating terrorism, its interest in preventing the ICC’s exercise of jurisdiction over American or allied personnel does not implicate the same potential consequences. Unlike the terrorist organizations designated by the government in Holder, the ICC is not a violent or deadly organization. Failure by the government to prevent such exercise of jurisdiction by the ICC does not have the potential to lead to the death of American or allied personnel, but rather potentially opens them up to criminal liability under the Rome Statute. However, despite these arguments, a court will likely find that the government’s interest in protecting attacks on its sovereignty, national security, or foreign relations is compelling. Regardless of such a conclusion, EO 13928 will nonetheless fail strict scrutiny because the speech restrictions being imposed are not narrowly tailored to advance that interest.

In determining whether a speech restriction is narrowly tailored to the identified government interest, the Supreme Court has looked to whether the restriction:

  1. materially advances the stated government interest;

  2. restricts a significant amount of speech that does not implicate the interest;

  3. fails to restrict a significant amount of speech that harms the interest;

  4. is the least restrictive alternative available to advance the compelling interest.24

EO 13928 only marginally advances the government interest, and likely does not meet the threshold required by strict scrutiny. The government will point to the ICC Office of the Prosecutor’s decision to investigate the situation in Afghanistan, including alleged conduct by members of the United States armed forces and of the Central Intelligence Agency, as posing an imminent threat of prosecution against American personnel.25 In so arguing, proponents of EO 13928 will contend that the restrictions and interests implicated are substantially similar to those in Holder v. Humanitarian Law Group. In that case, the Supreme Court held that, in presenting evidence of an imminent harms in the context of international relations and national security, prohibiting the provision of “material support in the form of training, expert advice, personnel and services to foreign terrorist groups” did, in fact, materially advance the government’s interest in combating terrorism.26 Section 3 of EO 13928 is distinguishable from the factual circumstances in Holder. Unlike the statute in Holder, it is not clear that the “provision of [...] services by, to, or for the benefit of” the designated ICC officials actually undercuts the government’s actions in preventing the ICC from exercising jurisdiction over American and allied personnel.

The Supreme Court in Holder identified a number of facts about the nature of terrorist organizations to support its conclusion that the speech restriction in that case materially advanced the government’s interest in combating terrorism. The Supreme Court emphasized a finding made by Congress that terrorist organizations “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.”27 The Supreme Court used this congressional finding to justify the government’s sweeping prohibition against “material support” to designated foreign terrorist groups, even if the material support was not given in support of the group’s violent ends.28 However, unlike the nature of terrorist organizations, the ICC is not so tainted by its attempts to exercise jurisdiction over the United States that any “services by, to, or for the benefit of” the designated ICC officials would be tantamount to support for the ICC’s exercise of jurisdiction over American or allied personnel. In fact, of the Office of the Prosecutor’s ten open preliminary examinations and thirteen open investigations, it seems that only one implicates American personnel.29 Additionally, although the Office of the Prosecutor included American forces as potential perpetrators in its request to open an investigation in Afghanistan, the ICC has never successfully exercised jurisdiction over American personnel.30 Moreover, it is not clear how the speech being restricted by section 3 of EO 13928—which seems to cover any speech that supports the designated officials of the ICC or their work—undermines the government’s interest. The “services” that would be provided through an American speaking in support of the designated persons or their efforts in the Office of the Prosecutor does not seem to materially increase the threat of prosecution.

Even if section 3 of EO 13928 does materially advance the government’s interest in protecting its sovereignty from “illegitimate” exercises of jurisdiction by the ICC, the speech restriction fails the narrow tailoring prong of the strict scrutiny analysis, in large part because it is substantially overinclusive as it relates to the government’s interest. Before analyzing the overinclusive nature of EO 13928’s speech restrictions, it is necessary to consider whether the section’s vagueness expands the amount of speech that it ultimately covers. If the prohibition is substantially vague as to make the boundaries of the prohibited speech unclear, the amount of speech covered by EO 13928 increases accordingly.

In Holder v. Humanitarian Law Group, the Supreme Court contemplated a statute that prohibited the provision of “material support or resources” to foreign terrorist groups that had been designated as such by the Secretary of State.31 In finding that the statute was not impermissibly vague such as to render it sufficiently overinclusive to fail strict scrutiny, the Supreme Court emphasized the statutory narrowing that followed the initial passage of the statute.32 Indeed, the statute at question in Holder was substantially less vague than the language in section 3 of EO 13928. Congress had further specified the meaning of “material support or resources” in the statute in question in Holder, initially defining it as:

Any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.33

This additional guidance provided by the statute in Holder provides substantially more notice than EO 13928’s prohibition on “services to, by or for the benefit of” designated persons, without further clarification as to what constitutes services. Moreover, the Supreme Court in Holder highlighted the additional statutory narrowing undertaken by Congress following the passage of the statute.34 Specifically, Congress added the term “expert advice or assistance” to the definition of “material support or resources.”35 Furthermore, Congress clarified the mental state required for an individual to violate the statute, requiring knowledge of the “foreign group’s designation as a terrorist organization or the group’s commission of terrorist acts.”36 The government, in defending EO 13928, would argue that, like section 3 of EO 13928, Congress later added the term “service” to the definition of “material support or resources.”37 Congress also further defined “training” to mean “instruction or teaching designed to impart a specific skill, as opposed to general knowledge, and defined “expert advice or assistance” to mean “advice or assistance derived from scientific, technical or other specialized knowledge.”38 While the statute in Holder ultimately did contain the term “services” by the time it was analyzed by the Supreme Court, that term was couched in the context of a substantially detailed definition of what constituted “material support or resources.” Unlike the statute in Holder, EO 13928 does not contain any such definition of “services.”

More importantly than the definition of “services” was the Holder statute’s specific exception regarding independent advocacy for the designated terrorist groups. The Supreme Court strongly emphasized the fact that the statute reaches “only material support coordinated with or under the direction of a designated foreign terrorist organization,” and specifically noted that “[i]ndependent advocacy that might be viewed as promoting the group’s legitimacy is not covered.”39 The Supreme Court further stressed the importance of this exception, stating that its decision “in no way suggest[s] that a regulation of independent speech would pass muster, even if the Government were to show that such speech benefits foreign terrorist organizations.”40 Unlike Holder, neither section 3 nor any other provision of EO 13928 excludes independent advocacy from the prohibition, thus rendering EO 13928 substantially more broad in its speech restrictions than the statute in Holder.41

When the boundaries of a restriction on speech are not clearly drawn, the vagueness of the restriction will have a substantial chilling effect on potential speakers who aim to steer well clear of prohibited speech. This chilling effect leads a vague restriction, such as the one found in section 3 of EO 13928, to restrict a significantly greater amount of protected speech. In this case, the vagueness of EO 13928’s speech restriction would lead a reasonable person to steer well clear of the speech being restricted, especially when they could potentially face civil penalties and criminal prosecution as a result of engaging in the restricted speech. Because of the significant uncertainty left by EO 13928 as to what amounts to the prohibited conduct in section 3—unlike the considerable detail provided by Congress in the Holder statute—EO 13928’s vagueness substantially contributes to the amount of speech that is restricted by section 3.

A speech restriction is overinclusive if it restricts a significant amount of speech that does not implicate the government’s stated interest.42 That is true of EO 13928. Firstly, as briefly mentioned in discussing whether the speech restriction materially advances the government interest, section 3 of EO 13928 is overinclusive as to individuals whose speech may constitute “services by, to, or for the benefit of” the designated ICC officials but does not address, encourage, or otherwise mention potential ICC exercise of jurisdiction over American or allied personnel. Because of the vagueness of section 3’s prohibition on “services by, to, or for the benefit of” designated persons—which is not further defined in EO 13928—individuals can be expected to avoid any speech that reasonably could subject them to civil or criminal liability, as proscribed by EO 13928. This would likely include any speech directed to the ICC, whether or not it supports or even relates to the exercise of ICC jurisdiction over American or allied personnel. Moreover, because of the vagueness as to what constitutes “services,” especially “services […] for the benefit of” the designated persons, it is possible that even speech that presents a position of opposition against the ICC’s exercise of jurisdiction may be restricted by section 3. If this opposition speech would be restricted by EO 13928, the speech restriction is overinclusive as compared with the government’s stated interest. If, on the other hand, opposition speech would not be restricted by EO 13928, then the prohibitions laid out in section 3 constitute clear viewpoint discrimination.

Furthermore, section 3 of EO 13928 is overinclusive as to advice and advocacy efforts on the part of American citizens that relate to investigations and prosecutions that the United States has expressly supported. Given the vagueness of the prohibition on “services” in section 3, it is reasonable to conclude that EO 13928 prohibits any speech that is made for the benefit of the designated ICC officials, regardless of whether it advocates for the ICC efforts to exercise jurisdiction over American or allied personnel. EO 13928 does not contain a provision limiting section 3’s prohibitions to speech that in some way relates to the ICC’s exercise of jurisdiction over the covered personnel.43 Unlike speech that serves to advocate for the ICC’s jurisdiction over the personnel identified by EO 13928, speech made “by, to, or for the benefit of” the designated ICC officials that does not address that issue directly, does not implicate the government’s interest in preventing such alleged jurisdictional overreach.

Strict scrutiny analysis also requires a court to consider whether less speech-restrictive alternatives to the prohibition in question exist that will achieve the compelling interest. Such alternatives exist here. The main alternative to the speech restriction, as applied through section 3 of EO 13928, would be to limit the conduct that implicates the government’s interest without restricting speech. It seems that, given the government’s stated interest in imposing “tangible and significant consequences on those responsible for the ICC’s transgressions,” the main effect of EO 13928 takes the form of the significant property, immigration, and financial restrictions on the designated ICC officials themselves. Removing section 3(a) from EO 13928 would render it substantially less speech restrictive while maintaining essentially the same effectiveness in the advancement of the government’s interest in punishing the designated ICC officials in an effort to protect American sovereignty.

Finally, EO 13928’s speech restriction is underinclusive as it relates to the government’s interest in preventing the investigation and prosecution of American and allied personnel. A speech restriction is underinclusive in relation to the stated government interest when a substantial amount of speech that implicates the interest is not restricted by the law.44 EO 13928 at question here is underinclusive as to other foreign officials, including other officials within the ICC or even within the Office of the Prosecutor, who may similarly have been involved in or seek to exercise jurisdiction over American or allied personnel. The fact that a speaker could provide “services,” in the form of speech, to other members of those offices who do not work with the designated persons but may nonetheless aim to exercise jurisdiction over American personnel suggests that the government’s stated interest in protecting American sovereignty and preventing American and allied personnel from being subject to international criminal liability is pretextual. The Secretary of State has the authority to designate any foreign person who he determines has committed any of the acts in section 1(a) of EO 13928. In particular, section 1(i)(D), authorizes the Secretary of State to designate a person because they “have acted or purported to act for or on behalf of, directly or indirectly,” any designated person.45 This would almost certainly apply to the rest of the staff in the Office of the Prosecutor, meaning that the Secretary of State, under the direction of the President, could have, but did not, designate others in the OTP and ICC who may pose similar (alleged) threats to American sovereignty. Such an underinclusive application of the speech restriction undercuts the compelling nature of the government’s interest, and supports a finding that the restriction is not narrowly tailored to the government’s stated interest.

IV. Conclusion

The issuance of EO 13928 by President Trump, when taken together with the Secretary of State’s designation of Fatou Bensouda and Phakiso Mochochoko as designated persons under EO 13928, restricts an extraordinary amount of protected speech. Whether the government intented to restrict such a substantial amount of speech is immaterial.46 In sum, section 3 of EO 13928 is a content-based restriction—which at least borders on viewpoint discrimination—and is thus subject to strict scrutiny. As discussed, EO 13928 does not pass strict scrutiny because it is not narrowly tailored to its stated interest. More specifically, section 3 of EO 13928:

  1. in large part fails to materially advance the government’s stated interest;

  2. is overinclusive as to independent advocacy and those who provide services to the ICC but in no way facilitate or encourage the ICC’s exercise of jurisdiction over American or allied personnel;

  3. is not the least speech-restrictive alternative available to the government in order to achieve its goal of protecting American sovereignty from ICC exercises of jurisdiction; and

  4. is underinclusive as to services provided to other ICC personnel that do not work or otherwise professionally interact with the designated persons for their benefit.

For all these reasons, section 3 of EO 13928 fails strict scrutiny, thus rendering it an unconstitutional restriction on American citizens’ First Amendment right to freedom of speech.

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

  1. 1.

    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.

  2. 2.

    Id. § 3(a).

  3. 3.

    EO 13928, supra note 1.

  4. 4.

    Id.

  5. 5.

    U.S. Constitution, amend. I, available online, archived.

  6. 6.

    R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 382 (Jun. 22, 1992) [hereinafter R.A.V. v. St. Paul], available online.

  7. 7.

    Eleanor McCullen et al. v. Martha Coakley et al., 573 U.S. 464, 479 (Jun. 26, 2014), available online; Clyde Reed et al. v. Town of Gilbert, Arizona et al., 576 U.S. 155, 163–64 (Jun. 18, 2015) [hereinafter Reed v. Gilbert], available online; see also Carey v. Brown, 447 U.S. 455 (Jun. 20, 1980), available online.

  8. 8.

    Rosenberger et al. v. Rector and Visitors of the University of Virginia et al., 515 U.S. 819, 829 (Jun. 29, 1995) [hereinafter Rosenberger v. Rector], available online

    (“The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for restriction.”).

  9. 9.

    R.A.V. v. St. Paul, supra note 6; Reed v. Gilbert, supra note 7.

  10. 10.

    EO 13928, supra note 1, § 3(a).

  11. 11.

    See Eric H. Holder, Jr. et al. v. Humanitarian Law Project et al., 561 U.S. 1, 27 (Jun. 21, 2010) [hereinafter Holder], available online.

  12. 12.

    See id.

  13. 13.

    Edmund G. Brown, Jr. et al. v. Entertainment Merchants Association et al., 564 U.S. 786, 799 (Jun. 27, 2011) [hereinafter Brown v. Entertainment Merchants Assn.], available online.

  14. 14.

    Rosenberger v. Rector, supra note 8.

  15. 15.

    EO 13928, supra note 1.

  16. 16.

    Turner Broadcasting Systems, Inc. et al. v. Federal Communications Commission et al., 512 U.S. 622, 658 (Jun. 27, 1994), available online.

  17. 17.

    Reed v. Gilbert, supra note 7.

  18. 18.

    EO 13928, supra note 1.

  19. 19.

    Holder, supra note 11, at 33–36

    (noting that executive or legislative evaluation of the facts about possible threats to national security is entitled to deference).

  20. 20.

    Id.

  21. 21.

    Id.

  22. 22.

    Id.

    (“Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.”).

  23. 23.

    Id.

  24. 24.

    See, e.g., Carey v. Brown, supra note 7.

  25. 25.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17, Request for authorisation of an investigation pursuant to article 15 (PTC III, Nov. 20, 2017), available online.

  26. 26.

    Holder, supra note 11, at 36.

  27. 27.

    Id. at 29–30.

  28. 28.

    Id.

  29. 29.

    Preliminary Examinations, ICC, available online (last visited Dec. 17, 2020); Situations Under Investigation, ICC, available online (last visited Dec. 17, 2020).

  30. 30.

    Defendants, ICC, available online (last visited Dec. 17, 2020).

  31. 31.

    Holder, supra note 11, at 8.

  32. 32.

    Id. at 21.

  33. 33.

    Id. at 8–9.

  34. 34.

    Id. at 11–12.

  35. 35.

    Id.

  36. 36.

    Id.

  37. 37.

    Id.

  38. 38.

    Id.

  39. 39.

    Id. at 31–32.

  40. 40.

    Id. at 39.

  41. 41.

    See EO 13928, supra note 1.

  42. 42.

    See, e.g., Carey v. Brown, supra note 7; Brown v. Entertainment Merchants Assn., supra note 13.

  43. 43.

    EO 13928, supra note 1.

  44. 44.

    See Brown v. Entertainment Merchants Assn., supra note 13; Carey v. Brown, supra note 7.

  45. 45.

    EO 13928, supra note 1.

  46. 46.

    Reed v. Gilbert, supra note 7

    (holding that a law that is “content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech”).

Are the United States’ Sanctions Against the International Criminal Court Appropriate?

I. Introduction

On June 11, 2020, in response to the International Criminal Court (ICC) authorizing an investigation into alleged war crimes committed against Afghanistan citizens, U.S. President Trump issued Executive Order 13928 approving sanctions against any person who have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any U.S. personnel or who have materially assisted the ICC or Office of the Prosecutor.1 In support of its actions, Trump claims that the ICC’s “illegitimate assertions of jurisdiction […] threaten to infringe upon the sovereignty of the United States.”2 While Afghanistan is a State Party to the Rome Statute, the United States is not a party to the Rome Statute, and rejects ICC assertions of jurisdiction over U.S. personnel without consent.3

This action by Trump drew strong criticism from the international community, and many scholars and proponents of the ICC chided the action as a break from international norms encouraging cooperation. However, the United States is not alone in its criticisms against the validity of ICC exercising jurisdiction over non-State parties. Since its inception, the ICC’s potential for jurisdiction over non-signatories to the Rome Statute has fueled concerns about the potential for overreach and invited heated analysis and opinions from experts in the international field to debate its merits.4 Putting aside whether the sanctions themselves are effective, the ongoing situation with the United States begs the question, to what extent does the sovereignty principal interplay with the ICC jurisdiction’s over non-State Parties? Is the United States correct in its assertion, underlying the sanctions, that this incident of ICC jurisdiction infringes on U.S. sovereignty?

Despite concerns, an analysis of the historical context of the ICC’s creation, customary international law principals, and additional international jurisdictional doctrines reveals that the United States issuance of sanctions is improper because the ICC is well within the boundaries of established international law and is not illegally infringing on State sovereignty in the limited circumstances in which it has jurisdiction over non-State Parties, including this one with the United States.

II. Background of Arguments

Following the September 11th terrorist attacks, the U.S. government initiated fervent investigations to find and capture members of the terrorist organizations Al-Qaeda or the Taliban, who were responsible for the attacks. In its complaint to the ICC, Afghanistan alleges that in the course of their zealous search, U.S. armed forces captured, detained, and transferred Afghani nationals to U.S.-controlled air bases in Afghanistan and subjected them to extremely cruel, humiliating, and degrading inhumane treatment.5 This treatment included deprivation of fundamental needs such as food, water, sleep, together with acts of sexual violence.6 In addition, the complaint alleges the U.S. Central Intelligence Agency (CIA) also captured and similarly mistreated Afghani nationals inside and outside Afghanistan, with a view of forcing confessions and obtaining information on the September 11th terrorist attacks.7

Assuming these acts constitute war crimes, under Article 12(2)(a) of the Rome Statute, the ICC has jurisdiction if “[t]he State on the territory of which the conduct in question occurred” has accepted the jurisdiction of the Court.8 Accordingly, as Afghanistan is a State Party to the Rome Statute, the Court has jurisdiction over the crimes committed by U.S. armed forces and the CIA through this provision. The ICC Court of Appeals also agreed with this interpretation, noting that:

As the incidents at issue all allegedly took place on the territory of a State Party to the Rome Statute, [they] fall squarely within the Court’s jurisdiction as per article 12(2)(a) of the Statute […] [and] no question relating to the Court’s territorial jurisdiction arises in this respect.9

However, the United States contests this authority. Simply put, the position of the U.S. is “a treaty does not create either obligations or rights for a third State without its consent.”10 Using this principle, the United States believes that any claim of jurisdiction by the ICC over a non-State Party is illegitimate and violates international norms, because a State cannot delegate territorial jurisdiction. However, this premise lacks foundation and dismisses decades of precedent and well-established customary international law supporting this type of jurisdiction. While the United States is correct that, under general international law, treaties do not bind non-state parties, a State cannot reject provisions of customary international law included within a treaty.11 Accordingly, despite their vehement disapproval, the delegation of jurisdiction to the ICC is in-line with customary international law and therefore legal to exercise, as discussed in further detail below.

III. Authority Allowing Jurisdiction

It must first be reiterated that there are in fact interests of two sovereign States at play here. In its issuance of unilateral sanctions, the United States fails to consider the sovereign rights of Afghanistan to freely choose how to prosecute crimes committed on their territory. It is this point of sovereignty, the sovereign rights of the signatory, which the Rome Statute looks to for consent to pursue an investigation by the Prosecutor. And should the signatory-State choose to voluntarily delegate the prosecution of these crimes to the ICC, in addition to the direct language of the Rome Statute itself in Article 12, there is substantial international law precedent that also supports this action.

A. Foundational Jurisdiction Over Non-Nationals

Firstly, contrary to the U.S.’ assumption, there is no modern principle recognized in international law that dictates States have an exclusive right to jurisdiction over acts committed by its nationals abroad. This idea was in fact a colonialist concept, whereby Western States used treaties to protect their nationals from the jurisdiction of foreign court.12 With the exception of status of forces agreements, these treaties do not exist in modern times.13 There are, however, several modern international law principles that do explicitly authorize jurisdiction to other interested States over acts committed by non-nationals of the interested State. One such international law principle is the “effects doctrine”, which dictates that a State may assert territorial jurisdiction over crimes committed by non-nationals if the crime takes place outside the state territory but produces effects within the territory of the State.14 In fact, the United States itself is a proponent for a broad interpretation of this particular doctrine and utilizes it frequently in antitrust and even drug cases.15 Another principle of international law, that of “ubiquity”, likewise allows for a state to claim jurisdiction if the crime took place in whole or in part on the territory of the State.16 A third example, the “constitutive elements principle” allows for the assertion of jurisdiction if at least one constitutive element of the crime occurred on the territory of the state.17 For each of these principles, the underlying foundation is clear: jurisdiction over crimes committed by a State’s nationals does not rest solely with that State. Moreover, each of these principles is in fact even more attenuated than the jurisdiction being presently sought by the ICC on behalf of Afghanistan in the present case. Under these principles, there is only a partial connection to the territory either through the actus reus of the crime itself, or the effect of the crime. Meanwhile, in the present case before the ICC, the actions of the U.S. armed forces and CIA took place wholly in Afghanistan, giving them traditional territoriality jurisdiction over the crimes. Collectively, these principles, which have existed for decades, disprove the U.S.’ claim that the jurisdiction being sought after is contrary to international law.

B. Customary International Law Allows for Delegation of Jurisdiction

Having established the foundation that States can prosecute crimes by non-nationals, the next refutable concern of the U.S.’ argument is that such jurisdiction cannot be delegated out from the State. As mentioned above, while a State can reject the terms of a treaty, they cannot reject principles of customary international law contained within a treaty.18 And an examination of customary international law concludes that delegating territorial jurisdiction to the ICC is permitted by principles of international law.

To start, a State’s interest in punishing war crimes or crimes against humanity that occur abroad can be just as significant as its interest in punishing internal crimes by non-nationals. This is especially true given that the core crimes under the ICC’s jurisdiction (war crimes, crimes against humanity, and genocide) are considered hostis humani generis, and therefore are considered a threat to the international community as a whole whenever they are committed.19 Under the principle of universal jurisdiction, certain crimes (such as war crimes) have been deemed so reprehensible that, when they occur on a State’s territory, the State is obligated to prosecute the individuals themselves, or extradite them to another forum.20 The ICC does not claim universal jurisdiction over the crimes outlined in the Rome Statute, as clearly evidenced by the specific requirements laid out for jurisdiction in Article 12. However, this principle does help inform the intent behind those provisions and supports the argument that delegation of jurisdiction to the ICC is allowable and intended under customary international law. Because States have not only the ability but the responsibility to prosecute these crimes under customary international law, it is not only misguided for the United States to claim the ICC is asserting improper jurisdiction over them, but it is also a violation of customary international law by refusing to assist with the prosecution of such crimes by instituting sanctions.

Moreover, there are no practical reasons to assume that territorial jurisdiction cannot be delegated to the ICC. The Lotus principle, discussed in detail in the S.S. Lotus case study below, forms the foundational basis for delegation of jurisdiction by stating that State parties do not need an express provision allowing action, but rather, it is assumed action is legal so long as there is no international law provision expressly prohibiting it.21 Substantively, no such provision presently exists. To go one step further, in his critique of the U.S.’ position on the scope of the ICC’s jurisdiction, international legal scholar Michael Scharf emphasizes that there are no special features of territoriality jurisdiction that would preclude it from being delegated to an international court based on procedural grounds.22 Functionally, there is no greater inconvenience to have an international court try a case than to have an individual State try a case of non-nationals under one of the principles mentioned above, because under both scenarios much of the witnesses and evidence would be located abroad.23 This counters any arguments of convenience of forum that would merit non-delegation of territorial jurisdiction. Relatedly, the international community has developed modes of judicial cooperation to encourage streamlining the process for all involved parties. Nothing about the nature of prosecuting territorial jurisdiction over the grave crimes covered by the Rome Statute precludes its delegation to an international criminal court. Moreover, as illustrated in the Nuremberg trials case study below, customary law allows a state to create an ad hoc international tribunal with others and to render any accused under its control to such a tribunal.24 This context sets an important foundation for the ICC to establish the terms of the Rome Statute as within the bounds of international law at the time of drafting, making it so the United States cannot refute its jurisdiction since the legality of the tribunal’s authority over non-State parties was already established through customary international law.

Lastly, international law principles enshrined in the United Nations Charter, which almost every country in the world (including the United States) has signed, support allowing the ICC to have jurisdiction of these grave crimes. First, Article 1(2) of the U.N. Charter establishes that one of the main purposes of the U.N. is to develop international relations based on respect for the “principle of equal rights and self-determination of peoples.”25 Article 2(4) further calls on Members to respect the sovereignty, territorial integrity, and political independence of other States.26 Here, by refusing to allow Afghanistan to delegate their legal jurisdiction over these crimes under international law to the ICC, the United States is refusing to respect their sovereignty, in violation of the U.N. Charter, as a nation allowed to determine how to prosecute crimes committed on their territory. Additionally, with respect to war crimes and crimes against humanity, the U.N. General Assembly declared that “States shall co-operate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity and shall take the domestic and international measures necessary for that purpose,”27 and “States shall assist each other in detecting, arresting, and bringing to trial persons suspected of having committed such crimes.”28 As a member of the U.N., the United States is reneging on its obligations to the international community as a whole by refusing to accept the ICC’s jurisdiction over the alleged war crimes committed by U.S. nationals on Afghanistan’s territory.

Each of the arguments made above are further supported by a closer look at several case studies, which again serve to root these principles in international law precedent and cement them as precedent against the U.S.’ current arguments.

IV. Case Studies

A. S.S. Lotus

The United States primarily argues that because no international principle specifically allows this level of delegation, that it is not authorized under international law norms. Not only is this premise mistaken, but it also relies on a problematic assumption: that there must be an express provision allowing an action before a State is authorized to take said action under public international law. However, precisely the opposite is true. Public international law is governed by what is expressly prohibited. To assume the former would actually limit the sovereignty of States by only allowing States to take actions that were deemed allowable by the international community, rather than actions that they saw appropriate as a sovereign nation. This principle was first articulated in the S.S. Lotus case. Turkey wanted to claim jurisdiction to try a French sailor for negligence on the high seas, which led to the death of Turkish citizens.29 France claimed that because Turkey could not “point to some title of jurisdiction recognized by international law” that the jurisdiction was illegitimate. The Permanent International Court of Justice, the predecessor to the ICJ, noted in its decision finding for Turkey that:

“Restrictions upon the independence of States cannot […] be presumed” and international law leaves to States “a wide measure of discretion which is only limited in certain cases by prohibitive rules.”30

Accordingly, they rejected France’s argument and found that the burden was on France to show that Turkey’s exercise of jurisdiction violated some prohibitive rule of international law.31 This idea, now referred to as the Lotus Principle, prescribes that a State’s course of action is allowable so long as there is not any international principle prohibiting it.32 This principle has been cited to on numerous occasions in cases since, including by the United States itself in the Nuclear Weapons case heard before the World Court.33 In their brief, the United States writes:

It is a fundamental principle of international law that restrictions on States cannot be presumed but must be found in conventional law specifically accepted by them or in customary law generally accepted by the community of nations.34

Through their own admission, the delegation of jurisdiction over the alleged war crimes from Afghanistan to the ICC cannot be limited absent a specific customary law principle to the contrary, which, as outlined above, is not present.

B. Nuremberg Trials

Long after Lotus was decided, the most notorious major case involving delegation to an international tribunal took place. Famously, after World War II, the Allied Powers collectively established the International Military Tribunal (IMT) at Nuremberg to try Germany for its crimes.35 This case sets clear precedent allowing for the delegation of jurisdiction for crimes of non-nationals. The first is that, as the IMT affirmed, in creating the Tribunal, the States simply “have done together what any one of them might have done singly, for it is not to be doubted that any nation has the right to set up special courts to administer the law.”36 In other words, these States could create such a tribunal without the consent of Germany and the tribunal could (and did) legally prosecute German nationals for their crimes. It should also be noted that, in this case, the claim to jurisdiction is again even broader and less attenuated than the jurisdiction claimed by the Rome Statute, because, in this case, none of the accused committed crimes within the territories of the accusers, nor were any of the direct victims nationals of the accusing States. It is also important to remember that at this time, due to the unconditional surrender of the German army, there existed no sovereign German state to provide consent for the trial of the major German war criminals at Nuremberg.37 So, it cannot be said that the creation of the tribunal, and the subjugation of German nationals to its jurisdiction, occurred with consent, as the United States now claims is necessary for the ICC.38 Again, this case illustrates important and time-honored precedent of delegation of war crimes to international tribunals on the basis of customary international law, supporting the ICC’s position in the Afghanistan case.

C. Myanmar Case

Finally, the ICC themselves addressed their jurisdiction over non-State parties in the recent Myanmar case. The Court started by affirming the arguments made in the earlier part of this comment: that States can assert territorial criminal jurisdiction as long as there is a link with their territory, and (based on the other theories of jurisdiction such as effects doctrine and ubiquity) they have a relatively wide margin of discretion to define the link.39 Next, the Court examines the historical context behind the creation of the ICC to determine if the drafters intended to impart a limitation on jurisdiction against non-State parties. In international law, when States delegate authority to an international organization, they transfer all powers necessary to achieve the purposes for which the authority was granted.40 If the Court could not exercise jurisdiction over cases involving non-State parties, it would preclude State parties from calling on the Court to prosecute many war crimes and other crimes that the ICC is supposed to have jurisdiction over. There is no indication, however, that the State parties to the Rome Statute intended to impose this limitation and prevent them from delegating these crimes (that they would legally have jurisdiction over themselves) to the ICC. This is supported by the fact that, in the Rome Statute, Article 15 bis (5), State parties did impose a limitation on jurisdiction with regards to the crime of aggression.41 Given that an explicit limitation on jurisdiction exists in Article 15 bis (5), but not in Article 12, it can be presumed that the drafters intended to transfer to the Court the same territorial jurisdiction they have under international law. Accordingly, the Court concluded that it may thus exercise territorial jurisdiction within the limits prescribed by customary international law, as outlined above.

V. Conclusion

The International Criminal Court is no stranger to arguments questioning its jurisdiction over non-State parties. Since its inception, it has faced sharp criticism over the merits of hearing cases involving States who have not yet signed or ratified the Rome Statute. However, an examination of customary international law and case precedent proves that, despite critiques, State-party delegation of territorial jurisdiction to the ICC is well-within the bounds of legality under international law. For this reason, the United States is misguided in its argument that this type of jurisdiction impedes on its sovereignty, and the sanctions it imposed are improper.

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

  1. 1.

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

  2. 2.

    Id.

  3. 3.

    Id.

  4. 4.

    See, e.g., Press Release, U.S. Dept. of State, Letter from John Bolton, Under Secretary of State, to Kofi Annan, U.N. Secretary General (May 6, 2002), available online

    (announcing that the United States will not become a party to the ICC treaty and is effectively withdrawing from signatory status).

    See also John Bolton, National Security Advisor, Speech to the Federalist Society (Sep. 10, 2018), available online.

  5. 5.

    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 (PTC II, Apr. 12, 2019), available online.

  6. 6.

    Id.

  7. 7.

    Id.

  8. 8.

    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. 12(2)(a), available online.

  9. 9.

    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.

  10. 10.

    Lee A. Casey & David B. Rivkin, Jr., The Limits of Legitimacy: The Rome Statute’s Unlawful Application to Non-State Parties, 44 Va. J. Int’l L. 63, 66 (2003), paywall.

  11. 11.

    Vienna Convention on the Law of Treaties, art. 34, May 23, 1969, 1155 U.N.T.S. 331, [hereinafter Vienna Convention], available online, archived.

  12. 12.

    See Bartram S. Brown, U.S. Objections to the Statute of the International Criminal Court: A Brief Response, 31 N.Y.U. J. Int’l L. & Pol. 855, 871 (Jan. 1999), available online.

  13. 13.

    Id. at 872.

  14. 14.

    Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ICC-01/19, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (PTC III, Nov. 14, 2019) [hereinafter ICC Myanmar Authorization], available online.

  15. 15.

    Jordan J. Paust et al., International Criminal Law, Cases and Materials 1270 (1st ed. 1996)

    (citing cases from the U.S. First, Second, Third, Fifth, and Ninth Circuit Courts of Appeals).

  16. 16.

    ICC Myanmar Authorization, supra note 14.

  17. 17.

    Id.

  18. 18.

    Vienna Convention, supra note 11.

  19. 19.

    Michael P. Scharf, The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position, 64 Law & Contemp. Probs. 67, 112 (2001), available online.

  20. 20.

    Dapo Akande, The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits, 1 J. Int’l Crim. Just. 618, 626 (Dec. 1, 2003), paywall, doi.

  21. 21.

    Scharf, supra note 19, at 72.

  22. 22.

    Id. at 113.

  23. 23.

    Id.

  24. 24.

    Id. at 117.

  25. 25.

    United Nations Charter, Art. 1(2), available online.

  26. 26.

    United Nations Charter, Art. 2(4), available online.

  27. 27.

    Jordan J. Paust, The Reach of ICC Jurisdiction over Non-Signatory Nationals, 33 Vand. J. Transnat’l L. 1, 4 (Jan. 2000), available online.

  28. 28.

    Id.

  29. 29.

    Scharf, supra note 19, at 72.

  30. 30.

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

  31. 31.

    Id.

  32. 32.

    Scharf, supra note 19, at 72.

  33. 33.

    Id.

  34. 34.

    United States Department of State, Letter to the ICJ, Written Statement of the Government of the United States of America Concerning the Request by the United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 8 (Jun. 20, 1995), available online.

  35. 35.

    Paust, supra note 27.

  36. 36.

    Id.

  37. 37.

    Id.

  38. 38.

    Scharf, supra note 19, at 116.

  39. 39.

    Id.

  40. 40.

    ICC Myanmar Authorization, supra note 14.

  41. 41.

    Id.

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.

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.

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.

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.

Beyond the Rome Statute: International Obligations to Promote the Victim Right to a Remedy

I. Introduction

In December 2003 Mr. al-Asad, a Yemeni national and successful businessman living in Tanzania, was seized from his home, in front of his family, by Tanzanian officials and secretly flown to Djibouti […] where he was interrogated by an American official and threatened with death. He was then handed over to US custody on the airport tarmac where he was […] stripped naked, sexually assaulted, diapered, chained, and strapped down to the floor of an aeroplane. He was then flown to Afghanistan where he was held incommunicado in three different facilities. While there, his American captors subjected him to sensory deprivation and dietary manipulation, shackled him in painful positions, prevented him from sleeping, held him in isolation, and blocked him from sunlight. After a year and a half, he was released to Yemeni custody. Since then Mr. al-Asad and his family have tried in vain to seek justice. Tragically Mr. al-Asad passed away three years ago. Our client’s surviving family, like many of the victims represented here today, has turned to the ICC as a last resort after unsuccessfully seeking accountability through numerous channels for more than a dozen years.1

It seems shocking to imagine a world in which a man like Mr. al-Asad could be forced to endure such horrific experiences but be unable to effectively seek justice. A world in which an attorney could be punished simply for describing such experiences in a court of law. A world in which an international prosecutor gets sanctioned just for opening an investigation. This is the world that was created on June 11, 2020 when the President of the United States issued Executive Order 13928 (EO 13928)2 blocking and sanctioning anyone who tried to help Mr. al-Asad, or any other victim of alleged U.S. human rights violations, uncover the truth and seek justice.

The consequences of the Executive Order are not only normatively unacceptable, but a violation of the U.S.’ international legal obligations. President Trump vehemently points out:

[T]he United States is not a party to the Rome Statute, has never accepted ICC jurisdiction over its personnel, and has consistently rejected ICC assertions of jurisdiction over United States personnel.3

But like all other sovereign states, the United States has extraterritorial and global human rights obligations with which it must align all of its conduct, regardless of to whom or where the violation happens. Facilitating victims’ access to justice is a key function of the International Criminal Court (ICC), which, as Ms. Reisch points out, is the last resort court of justice for families like the al-Asads. By handicapping the victims and depriving them of the legal assistance foreseeably needed to pursue justice at the ICC, EO 13928 unacceptably infringes on the victims’ right to a remedy and breaches the U.S.’ international human rights obligations.

II. United States Extraterritorial and Global Human Rights Obligations

When a state acts outside of its jurisdiction, it still has human rights obligations. These obligations can arise through 1) traditional extraterritorial obligations, 2) global obligations, or both.4 Traditional extraterritorial obligations encompass “acts and omissions of a State […] that have effects on the enjoyment of human rights outside of that State’s territory;” whereas global obligations are derived from the U.N. Charter and various human rights instruments “to take action, separately, and jointly through international cooperation, to realize human rights universally.”5

Although the extraterritorial and global human rights obligations were traditionally applied to economic, social, and cultural rights through the Maastricht Principles, they can reasonably be understood to similarly guarantee civil and political rights. Global obligations arise under the U.N. Charter, which does not differentiate between the different types of human rights. Articles 55 and 56 require states to take action “separately and jointly” to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”6 Additionally, many provisions of the International Convention on Civil and Political Rights (ICCPR) are understood to be customary international law or being extraterritorial in nature. The travaux préparatoires shows that there was no intention to give the States Parties “carte blanche” to have their agents commit crimes as long as they were acting abroad.7 Hence, civil and political rights can reasonably be included within the understanding of traditional extraterritorial human rights obligations as articulated in the Maastricht Principles.

III. Right to a Remedy

The right to a remedy is well-established in international human rights law. When a violation of human rights occurs, this right reflects a duty on the State to provide access to justice regardless of whether the human rights violation was done by State agents.

Several of the most important international human rights instruments emphasize the right to a remedy. Article 8 of the Universal Declaration of Human Rights provides that “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” The ICCPR similarly requires State Parties to afford an effective remedy to a victim notwithstanding that the violation has been committed by persons acting in an official capacity. Similar provisions exist in several regional human rights treaties.8

One of the key attributes of the right to a remedy is the ability to invoke the guaranteed right.9 The United National General Assembly has adopted guidelines on the right to a remedy when there are violations of human rights law. The guidelines underscore that “a victim of a gross violation of international human rights law […] shall have equal access to an effective judicial remedy”10 The guidelines go as far as to say that the right to a remedy requires states to provide assistance in accessing justice and “minimize the inconvenience to victims and their representatives.”11

IV. EO 13928 and Victims of Torture

On June 11, 2020, President Trump issued EO 13928 “Blocking Property of Certain Persons Associated with the International Criminal Court” (EO 13928). In framing the sanctions to be imposed on those designated as “responsible for the ICC’s transgression” including the ICC Prosecutor’s investigations into actions committed by Americans in Afghanistan, President Trump explains:

The United States remains committed to accountability and to the peaceful cultivation of international order, but the ICC and parties to the Rome Statute must respect the decisions of the United States and other countries not to subject their personnel to the ICC’s jurisdiction, consistent with their respective sovereign prerogatives.12

This statement is misleading in its assumption that the only reason the United States would have to respect ICC decisions is if it were a party to the Rome Statute, and that rejecting the Prosecutor’s investigation is in line with the U.S.’ international obligations. In fact, the U.S.’ extraterritorial and global human rights obligations call for its cooperation in advancing the right to a remedy for victims of human rights violations around the world, especially where the United States itself is alleged to have committed those violations. Because it has the foreseeable effect of precluding victims’ right to remedy, EO 13928 inappropriately violates the U.S.’ extraterritorial and global human rights obligations by denying victims of torture in Afghanistan access to justice.

Victims of torture are widely accepted in international law to be a vulnerable group with the right to a remedy and even reparations. The prohibition on torture is accepted as a jus cogens norm, and there is wide consensus that torture amounts to a gross human rights violation.13 There are numerous international instruments and institutions14 dedicated to ensuring the rights of victims of torture, including The U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 14(1) of that Convention states the obligation that states have to guarantee torture victims’ right to a remedy:

Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.

The effect of EO 13928 will foreseeably be precluding victims of torture from their right to a remedy, as its broad language will reach all those seeking to provide them with legal assistance.

The breadth of EO 13928 precludes any legal assistance to victims looking for a remedy in front of the ICC. The order sanctions:

  1. those who have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any U.S. personnel or personnel of a U.S. ally without the consent of the United States, as well as

  2. anyone who has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of the OTP investigation.

Amnesty International and other human rights advocates have pointed out that this vague language might reach anyone providing any assistance at all to the Court, including victim’s advocates, expert witnesses, national human rights researchers, and even student interns.15 In her piece “I help children in armed conflict. The President is forcing me to stop.,” the Special Adviser to the International Criminal Court Prosecutor on Children in and affected by Armed Conflict explains how EO 13928 goes so far as to preclude her from assisting children who have allegedly been sexually abused by armed groups in Myanmar.16

Given the Prosecutor’s declared intent to focus on violations of the prohibition on torture in Afghanistan, EO 13928 will foreseeably limit torture victims’ access to a remedy. When Prosecutor Fatou Bensouda initially submitted her request to open an investigation into crimes within the jurisdiction of the Court committed by the Taliban, Afghan forces, and U.S. actors, in the context of the armed conflict in Afghanistan, one of the war crimes that she explained she would focus on was torture and cruel treatment, particularly by U.S. forces:

On the basis of the information available, there is a reasonable basis to believe that members of the US armed forces and the CIA have committed the war crime of torture and cruel treatment pursuant to article 8(2)(c)(i).17

When the request to open an investigation was denied, appeals came both from the Prosecutor and from victims who had submitted representations to the Court. The latter appeal was important because it allowed the Appellate Chamber to hear testimonies of victims of U.S. torture.18 Such legal representation, facilitated by four separate legal teams supporting seven victims of the U.S. torture program, would have been unlikely if done after EO 13928 because all those assisting in the representation would have their property and interests in property in the United States blocked. Access to legal assistance and support from advocacy organizations is essential for these victims to be able to navigate the international criminal system. Even with representation, victims of alleged U.S. torture have been seeking justice for the past fifteen years with no remedy or accountability given up to this point. Sanctioning those able to render such support will foreseeably preclude those victims’ right to a remedy by handicapping their ability to make a strong case for themselves.

These victims are also unable to seek their right to remedy elsewhere, as courts in Afghanistan and other international human rights courts do not have jurisdiction over the matter. Other states who may try to hear such claims domestically will also be prevented by jurisdictional issues, immunity, foreign relations complications, and general pressure from the United States. Violating the right to a remedy for these victims at the International Criminal Court effectively deprives them of a right to a remedy anywhere.

The U.S.’ extraterritorial and global obligations extend over its conduct in Afghanistan. Traditional extraterritorial obligations apply when:

  1. States exercise effective authority or control over people or territories, or

  2. the exercise of States’ jurisdiction has a foreseeable effect outside of their territory.19

In this case, both bases for extraterritorial jurisdiction are satisfied. Victims have alleged torture by DoD and CIA personnel, sanctioned by authorities in the United States as part of a torture program in “black sites” around the world, including in Afghanistan.20 Victims described practices of physical and sexual assault executed directly by U.S. personnel21 who exercised complete authority over them. As described previously, sanctioning those seeking to assist these victims will foreseeably violate their right to a remedy. The U.S.’ global obligations, too, clearly extend in this case as the right to be free from torture is clearly a “human right and fundamental freedom” that the United States is obligated to promote both “separately and jointly” under Articles 55 and 56 of the U.N. Charter.

The violation of U.S. extraterritorial and global obligations makes EO 13928 inappropriate even if the United States is not a party to the Rome Statute. The right to a remedy includes an obligation on states to make available all appropriate legal, diplomatic, and consular means to ensure that victims can exercise their rights to remedy for gross violations of international human rights law or serious violations of international humanitarian law.22 By violating the right to a remedy for victims of alleged torture by sanctioning those looking to provide legal assistance to those victims, the United States has violated both its extraterritorial and global obligations.

V. Conclusion

Shortly after EO 13928 was issued, respected former four-star general Wesley L. Clark wrote:

The United States benefits from its leading role in developing and complying with international law and from the institutions that help enforce that law […]. Taking the law seriously has also meant helping ensure there are consequences for the worst violations of it.

Clark’s analysis points to an atrocious dichotomy: while victims who are American or allies of America get the full breadth of global human rights protection, victims in the unfortunate position of suffering human rights violations, even gross ones like Mr. al-Asad, by these same parties will not be entitled to the same broad protection. Conditioning the right to a remedy on the nationality of the alleged perpetrator goes against the very essence of a global framework to cooperate for the realization of basic human rights. If the United States truly intends to “remain […] committed to accountability and to the peaceful cultivation of international order,” it must immediately withdraw EO 13928 and commit to cooperating with the OTP’s investigation.

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

  1. 1.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17, Transcript of Day 1 Oral Hearing, 47 (AC, Dec. 4, 2019), available online.

    (Testimony of Nikki Reisch, legal representative for victim Mohammed Abdullah Saleh al-Asad, at the Appeals Hearing in front of the ICC. Reisch works at the Global Justice Clinic at the New York University School of Law).

  2. 2.

    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.

  3. 3.

    Id.

  4. 4.

    Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights ¶ 8, Int’l Comm. of Jurists (Sep. 28, 2011) [hereinafter Maastricht Principles], available online, doi.

  5. 5.

    Id.

  6. 6.

    United Nations Charter, Arts. 55, 56, available online.

  7. 7.

    Christian Tomuschat, International Covenant on Civil and Political Rights (1966) ¶ 23, MPEPIL (Apr. 2019), paywall.

  8. 8.

    See, e.g., European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 13 (Nov. 4, 1950, entered into force Sep. 3, 1953), available online; American Declaration of the Rights and Duties of Man, Art. XVII (May 2, 1948), available online; American Convention on Human Rights, Art. 25 (Nov. 22, 1969, entered into force Jul. 18, 1978), available online; African Charter on Human and Peoples’ Rights, Art. 1 (Jun. 27, 1981, entered into force Oct. 21, 1986), available online.

  9. 9.

    Dinah Shelton, Human Rights, Remedies ¶ 3, MPEPIL (Jul. 2006), paywall.

  10. 10.

    Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (Dec. 16, 2005) [hereinafter 2005 Basic Principles], available online.

  11. 11.

    Id.

  12. 12.

    EO 13928, supra note 2.

  13. 13.

    Roger-Claude Liwanga, The Meaning of “Gross Violation” of Human Rights: A Focus on International Tribunals’ Decisions over the DRC Conflicts, 44 Denv. J. Int’l L. & Pol’y 67, 70–71 (2015), available online.

  14. 14.

    (Examples include the Committee Against Torture, Voluntary Fund for Victims of Torture, U.N. Special Rapporteur on Torture, European Convention against Torture, Committee for Prevention of Torture, and Robben Island Guidelines).

  15. 15.

    Press Release, Amnesty Int’l, Attacks on the International Criminal Court Endanger NGO Workers (Jun. 11, 2020), available online.

  16. 16.

    Diane Marie Amann, I Help Children in Armed Conflict. The President Is Forcing Me to Stop., Just Security (Jun. 29, 2020), available online.

  17. 17.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17, Request for authorisation of an investigation pursuant to article 15 (PTC III, Nov. 20, 2017) [hereinafter OTP Request for Authorization], available online.

  18. 18.

    Katherine Gallagher & Nikki Reisch, ICC Holds Historic Hearing on U.S. Torture and Other Grave Crimes in Afghanistan, Just Security (Dec. 23, 2019), available online.

  19. 19.

    Maastricht Principles, supra note 4, § 9.

  20. 20.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17, Corrigendum of Victims’ Joint Appeal Brief against the “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan”(AC, Oct. 1, 2019), available online.

  21. 21.

    OTP Request for Authorization, supra note 17, at 90–93.

  22. 22.

    2005 Basic Principles, supra note 10.

The Effects of the Executive Order on the Legitimacy of the ICC

Introduction

States, particularly those against whom proceedings have been brought, have had contentious relationships with international judicial institutions. There are various ways in which these States refuse to cooperate with international courts. Among others, these methods of non-compliance and non-cooperation include refusing to comply with arrest warrants, attacking the legitimacy of the institutions, declining to take part in the proceedings, defying orders, and rejecting judgments. President Trump’s recent Executive Order (EO) targeting the International Criminal Court (ICC) is another method of non-cooperation albeit a drastic one—many have perceived this action as an attack on judicial independence and contrary to the rule of law.1

This comment addresses the effects of the EO on the sociological legitimacy of the ICC. Section I defines legitimacy and discusses cases in which courts have taken actions to protect their legitimacy. Section II examines instances of U.S. non-compliance with the International Court of Justice (ICJ) and its effects on the ICJ’s legitimacy. Section III analyzes the possible positive and negative implications of the EO on the legitimacy of the ICC given its specific situation.

I. Sociological Legitimacy of International Courts

A. Types of Legitimacy

The legitimacy of judicial institutions can be split into distinct types: normative legitimacy and sociological legitimacy. While normative legitimacy is concerned with the right to rule according to predefined standards, sociological legitimacy “derives from perceptions or beliefs that an institution has such a right to rule.”2 Assessments of normative legitimacy may apply legal, political, philosophical, or other standards while sociological legitimacy is subject to empirical analysis, such as by measuring the degree or type of support that an institution enjoys.3 Since a legitimate court may be defined as one that “possesses a justifiable right to issue judgments, decisions, or opinions, which those normatively addressed must obey, or at least consider with due care,”4 non-compliance and non-cooperation could both be a symptom of lack of legitimacy as well as a threat to legitimacy itself. To protect their legitimacy, courts consider the effects of their judgments. This utilitarian calculus does not necessarily mean that courts bend to political pressure per se. Rather, they make conservative decisions that are likely to be obeyed, thereby ensuring that the court will maintain (or grow) its sociological legitimacy. The alternative might result in non-compliance with the judgment and a subsequent damage to the court’s sociological legitimacy—damage which could lead to further non-compliance.

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.

An Ultra Vires Attack on the ICC: Executive Order 13298 and the IEEPA

In November 2017, International Criminal Court (ICC) Prosecutor Fatou Bensouda requested authorization to open an investigation into alleged war crimes and crimes against humanity committed in Afghanistan after May 1, 2003, which would include an investigation of Taliban and Afghan National Security Forces, as well as United States military and Central Intelligence Agency personnel.1 Initially denied by the Pre-Trial Chamber, the authorization to investigate was approved by the Appeals Chamber in March 2020.2 In apparent response to this development, on June 11, 2020, President Donald Trump issued Executive Order 13928 (EO 13928)3 which determined that the ICC’s investigation into actions allegedly committed by U.S. nationals in Afghanistan constituted “an unusual and extraordinary threat to the national security and foreign policy of the United States.”4 EO 13928 declared a national emergency to deal with the threat imposed by the ICC.5 As a result of EO 13928, on September 2, 2020, Ms. Bensouda and Phakiso Mochochoko, Head of the Office of the Prosecutor’s Jurisdiction, Complementarity and Cooperation Division of the ICC, were added to the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons. In addition, EO 13928 also prohibits any person from “making any contribution or provision of funds, goods, or services, by, to, or for the benefit” of any person blocked under EO 13928.6 President Trump’s Order was issued under multiple authorities, including the International Emergency Economic Powers Act (IEEPA).7

The IEEPA, enacted in 1977, delegates broad emergency powers to the president to levy a variety of economic sanctions during a period of national emergency. EO 13928 relies heavily on the IEEPA as the legal authority to declare a national emergency in relation to the actions of the ICC and impose sanctions on members of the ICC, as well as anyone supporting the ICC.

On the surface, the President’s reliance on the IEEPA would appear to be appropriate. However, upon further analysis and application of the IEEPA to EO 13928, EO 13928’s reliance on the IEEPA is flawed. EO 13928 is outside of the statutory authority granted to the President under the IEEPA, and as such, is ultra vires for two reasons: first, the actions of the ICC do not constitute a national emergency, as there exists no evidence to warrant the designation of an “unusual and extraordinary threat,” and second, EO 13928 regulates conduct that is specifically exempt under the IEEPA. The Trump Administration made it clear in 2018 that any and all actions would be taken against the ICC and the Prosecutor to further the Trump Administration’s policy goals. The timing of the Appeals Chamber decision approving the Prosecutor’s investigation into alleged crimes in Afghanistan and EO 13928 is just too close together to be coincidental, particularly when the Trump Administration stated that they would engage in such actions against the ICC and the Prosecutor if their investigation into Americans was to proceed. It is, therefore, unsurprising that EO 13928 would manipulate the requirements of the IEEPA to further their policy goals.

EO 13928 is Ultra Vires Because the ICC’s Actions Do Not Meet the “Unusual and Extraordinary” Threat Requirement of the IEEPA

When examined against the legislative intent and historical use of the IEEPA, the ICC’s actions fail to rise to the level of an “unusual and extraordinary threat” as required by the IEEPA. The IEEPA gives the President broad powers to act during times of national emergency, including the use of economic-based sanctions. The IEEPA requires the declaration of a national emergency in order for these powers to be utilized by the President.8 The President may only declare a national emergency to “deal with any unusual and extraordinary threat, which has its source in whole or in substantial part outside the United States, to the national security, foreign policy, or economy of the United States”9 Neither the National Emergencies Act (NEA),10 nor the IEEPA, provide a definition of what constitutes an “unusual and extraordinary threat.” This allows for a broad interpretation by the President and application to a variety of circumstances that may not truly constitute such a threat.

Legislative documents surrounding the enactment of the IEEPA provide guidance as to Congress’ intended usage of the declaration of a national emergency:

A national emergency should be declared and emergency authorities employed only with respect to a specific set of circumstances which constitute a real emergency, and for no other purpose. The emergency should be terminated in a timely manner when the factual state of emergency is over and not continued in effect for use in other circumstances. A state of national emergency should not be a normal state of affairs. (emphasis added).11

While the authority conferred to the President under the IEEPA is broad, Congress intended to limit the President’s ability to declare an indefinite national emergency and meant for the declaration of a national emergency to be narrowly tailored to a specific event or circumstance.12

Since the enactment of the NEA and the IEEPA in 1976 and 1977, fifty-nine of sixty-seven declarations of a national emergency have utilized the IEEPA as the legal authority for such a declaration.13 Since 1990, almost all of the national emergency declarations under the IEEPA not relating to a specific geographic area have dealt with matters of national security, such as chemical and biological weapons proliferation, weapons of mass destruction, terrorism, cyber warfare, human rights abuses, and transnational criminal organizations.14

The actions of the ICC, in engaging in the investigation of crimes that may be within their jurisdiction, fail to rise to the level of an “unusual and extraordinary threat” against the United States, let alone a threat at all. By definition, the words “unusual” and “extraordinary” signify something that is manifestly abnormal to the normal state of affairs. Congress has made clear in its passage of the IEEPA that the emergency triggering the act must be a real threat to the United States and must not be something that could normally occur. The investigation of U.S. citizens, military and intelligence personnel, and government activities is something that is done regularly by human rights groups, other governments, and international institutions.

It is enough that senior American officials, well attuned to the old-fashioned American sense of justice, readily accept that not even American soldiers are immune from accountability when they are suspected of committing crimes in foreign countries.15

It is by no means abnormal or unusual for the conduct of the United States and its citizenry to be scrutinized. In addition, when placed next to the previous history of non-geographic uses of the IEEPA, EO 13928 is in stark contrast as those uses were for clear threats to the national security of the United States. The investigation of U.S. citizens certainly does not rise to the level of weapons proliferation, human rights abuses, or terrorism.

That the tool is now being deployed as a threatened broadside against an organization dedicated to redressing international crimes—rather than against an adversary state (like Iran, North Korea, or Cuba) or a specific threat (like terrorism or WMD proliferation), as all other sanctions programs are—is bizarre and troubling.16

EO 13928 provides no evidentiary basis for why this conduct is so egregious or abnormal as to qualify as an “unusual and extraordinary threat,” nor does the language, use, or legislative intent of the statute appear to support this position. As such, EO 13928 fails to adequately comply with the requirements of the IEEPA.

In addition, EO 13928 appears to abandon the IEEPA’s requirement of an “unusual and extraordinary threat,” and instead focuses on achieving the Trump Administration’s policy goals towards the ICC. Presidents have used the IEEPA to support administration and congressional national security and foreign policy goals and objectives.17 More recently, presidents:

[H]ave largely ignored the requirement of an ‘unusual and extraordinary threat.’ Presidents typically invoke the IEEPA whenever they believe it would advance foreign policy goals, regardless of whether an actual emergency […] exists.18

The Trump Administration has a clear policy of antagonism towards the ICC. In 2018, National Security Advisor John Bolton, outlined the Trump Administration’s policy as it related to the ICC, declaring that the United States would not “cooperate, engage, fund, or assist” the ICC in any way.19 Mr. Bolton argued that the ICC threatened the United States’ sovereignty and national security for five reasons, the most important of which being that the ICC has the unfettered ability to investigate, charge, and prosecute individuals without either their government’s or their consent.20 Mr. Bolton also argued that the crimes under ICC jurisdiction were poorly defined, that the ICC fails in its goal to deter or punish crimes, is superfluous to U.S. domestic courts, and is divisive in nature.21 Interestingly, Mr. Bolton noted that, should the ICC continue any investigation into Americans or United States’ allies, the United States would ban the prosecutor from entering the United States and sanction their funds in the U.S. financial system.22

It can only be imagined that these are the reasons that the President relied on when designating the actions of the ICC as an “unusual and extraordinary threat” to the United States in EO 13928. However, the Administration’s policy overstates and embellishes the actual authority of both the Prosecutor and the ICC and contains “several errors regarding the ICC’s structure, jurisdictional reach, and internal accountability mechanisms.”23 The Administration’s primary argument is in error. It states that:

The ICC and its Prosecutor had been granted potentially enormous, essentially unaccountable powers, and alongside numerous other glaring and significant flaws, the International Criminal Court constituted an assault on the constitutional rights of the American People and the sovereignty of the United States24

Not only is the ICC’s jurisdiction time-bound,25 but it is limited to only those crimes identified in the Rome Statute. In addition, the ICC does not have unlimited and automatic jurisdiction over anyone, but rather the ICC may only exercise jurisdiction, in pertinent part, when the alleged crime is committed either on the territory of a State Party or by a national of a State Party, or if a State accepts jurisdiction of the ICC.26 Gravity and complementarity must also be taken into account when determining case selection.27 The Trump Administration has further indicated that United States’ courts are superior to the ICC. If the United States’ courts opened an investigation into Americans’ alleged conduct in Afghanistan after May 2003, complementarity would prohibit the ICC from investigating and the domestic courts would be allowed to adjudicate the matter.28 “All it takes is for American authorities to submit individuals suspected of violations in Afghanistan to America’s own very effective of system of justice.”29 As the ICC is a treaty-based court, it is “surprising and misleading to claim that the negotiation of a new treaty, like the ICC, is somehow a threat to the United States’ sovereignty or the role of its Constitution.”30 This is particularly true when the ICC has indicated that it is “not intent on ‘hauling’ Americans up to trial before it.”31 Finally, it is unclear how the ICC and the Prosecutor present an “unusual and extraordinary threat” when much of the work done by the ICC and the Prosecutor “is completely aligned with U.S.-avowed interests.”32 It is illogical that a judicial institution that engages in work supported by the United States could also constitute a threat. Given the errors in the Trump Administration’s reasoning and justification for their policy towards the Prosecutor and the ICC, it is clear that the ICC does not constitute an “unusual and extraordinary threat” to the United States, as it provides no threat to Americans, national security, or foreign policy in any way.

The President has no evidentiary basis to designate the ICC or the Prosecutor as an “unusual and extraordinary threat,” particularly when such a designation is based on inaccuracies and exaggerations. In addition, the designation does not meet with the legislative intent or common usage of the IEEPA as there is no “real” emergency posed by the ICC. EO 13928 is ultra vires as it fails to comply with an essential element of the IEEPA as it has not identified a true threat which necessitates the declaration of a national emergency, but is rather a retaliatory measure veiled as a lawful action.

EO 13928 Is Also Ultra Vires Because It Regulates Conduct That Is Specifically Exempted by the IEEPA

EO 13928 relies on the IEEPA as the legal authority for the regulation of such conduct, however the IEEPA provides no authority to the President to engage in such action. In fact, the IEEPA does just the opposite, specifically prohibiting the President from taking any action against activities that are informational in nature. Specifically, EO 13928 prohibits “the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of”33 the Prosecutor. In addition, anyone who is found to “have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of,”34 the Prosecutor is subject to sanction, including monetary fines and imprisonment. The IEEPA limits the ability of the President to regulate or prohibit specific conduct during a national emergency. Specifically, the IEEPA limits the regulation of:

[T]he importation from any country, or the exportation to any country, […] of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD-ROMs, artworks, and news wire feeds.35

The exchange of this information cannot be otherwise controlled except for “national security or foreign policy reasons related to weapons proliferation or international terrorism.”36 Even the USA Patriot Act, which provided broad powers to the President after 9/11, did not limit these provisions of the IEEPA.

EO 13928’s contradiction of the IEEPA’s protections is already affecting U.S. nationals. There are a number of organizations and scholars who provide information or informational materials to the ICC and the Prosecutor via research and scholarship. EO 13928 subjects this information and its authors to sanction that are outside the authority of the IEEPA. In Open Society Justice Initiative et al. v. Donald Trump et al.,37 currently pending in the Southern District of New York, four prominent international law scholars argue that EO 13928 prohibits them from providing information and informational materials to the Prosecutor, which they have provided in the past, regarding a variety of issues concerning the ICC or the Prosecutor. “Plaintiffs have engaged with the ICC […] by educating, training or advising them […] and by undertaking public advocacy in support of their mission and work.”38 In addition, these legal scholars argue that they have had to substantially alter their planned research and scholarship endeavors to avoid violating EO 13928, as these activities would potentially subject them to penalty.39 The ability of these four scholars, and likely countless others, to continue to provide information to the ICC and the Prosecutor has been impaired by EO 13928 in a way that the IEEPA specifically intended to protect.

EO 13928 plainly utilizes authority the President does not have under the IEEPA. EO 13928 provides no limitation for specific circumstances that are exempted by the IEEPA, but rather provides a blanket ban on all conduct associated with the ICC or the Prosecutor. This includes information or informational materials that may have nothing to do with the investigation into alleged crimes in Afghanistan. The IEEPA protects these informational activities and EO 13928’s prohibition of such activities is ultra vires.

Conclusion

The IEEPA was intended to provide broad authority to the President in times of national emergency, when there exists an “unusual and extraordinary threat.” This was intended by the Legislature to constitute something extreme such as weapons of mass destruction or terrorism. While EO 13928 designates the ICC and the Prosecutor as an “unusual and extraordinary threat,” such a designation is unsubstantiated and unfounded. As the designation is improper, EO 13928 is ultra vires to the authority granted by the IEEPA. The Trump Administration has erroneously labeled the ICC and the Prosecutor’s authority as unlimited, and taken an aggressive and antagonistic stance towards the ICC, despite the fact that much of the work done by the ICC and the Prosecutor aligns with U.S. interests. In painting a picture of the ICC and the Prosecutor as rogue actors who are intent on imprisoning Americans, the Trump Administration has made it clear that EO 13928 is nothing more than a retaliatory action for the Prosecutor’s failure to back down when threatened by the United States. This is not the intended use of the IEEPA and is yet another example of how EO 13928 is ultra vires.

In addition, the IEEPA specifically protects information and informational materials even during times of a national emergency. EO 13928 completely ignores such protections and bans conduct that is protected by the IEEPA, again making EO 13928 ultra vires to the authority granted by the IEEPA. This has already negatively affected U.S. citizens who engage in research and scholarship meant to provide information on specific issues to the ICC and the Prosecutor.

Sadly, it is unlikely, despite it being ultra vires, that EO 13928 will be successfully contested as “determinations concerning national security issues receive a high degree of judicial deference, if they are challenged at all.”40 However, one can only hope that the new Biden administration will reverse course as it relates to the ICC and continue to stand for justice and the end to impunity.

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

  1. 1.

    Afghanistan, ICC, available online (last visited Dec. 30, 2020).

  2. 2.

    Id.

  3. 3.

    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.

  4. 4.

    Id.

  5. 5.

    Id.

  6. 6.

    Id. § 3(a).

  7. 7.

    Unusual and Extraordinary Threat; Declaration of National Emergency; Exercise of Presidential Authorities, 50 U.S.C. § § 1701–1708 (Jan. 3, 2012) [hereinafter Unusual and Extraordinary Threat], available online.

  8. 8.

    Id. § 1701(a).

  9. 9.

    Id.

  10. 10.

    National Emergencies Act, 50 U.S.C. § § 1601–1651 (Sep. 14, 1976), available online.

  11. 11.

    Christopher A. Casey, Dianne E. Rennack, Ian F. Fergusson & Jennifer K. Elsea, Cong. Research Serv., R45618, The International Emergency Economic Powers Act: Origins, Evolution, and Use, 9–10 (Jul. 14, 2020) [hereinafter IEEPA Origins], available online

    (citing U.S. Congress, House, Trading with the Enemy Act Reform Legislation, Report of the Committee on International Relations on H.R. 7738 at 4, 95th Cong., 1st sess., H. Rept. 95–459 (Jun. 23, 1977)).

  12. 12.

    Thomas J. McCarthy, James Tysse & Caroline Wolverton, Challenging Executive Actions Under IEEPA, Nat’l L.J. (Jun. 2018), available online.

  13. 13.

    IEEPA Origins, supra note 11, at 17–18.

  14. 14.

    Id. at 21.

  15. 15.

    Chile Eboe-Osuji, Editorial, All We Want Is Justice for Victims, Says the I.C.C., N.Y. Times, Jun. 18, 2020, available online.

  16. 16.

    Adam M. Smith, Dissecting the Executive Order on Int’l Criminal Court Sanctions: Scope, Effectiveness, and Tradeoffs, Just Security (Jun. 15, 2020), available online.

  17. 17.

    IEEPA Origins, supra note 11, at 25–26.

  18. 18.

    Elizabeth Goitein & Andrew Boyle, Limiting This Governmental Emergency Power Could Curb Presidential Overreach, Brennan C. for Just. (Mar. 5, 2020), available online.

  19. 19.

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

  20. 20.

    Id.

  21. 21.

    Id.

  22. 22.

    Id.

  23. 23.

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

  24. 24.

    Bolton, supra note 19, at note 17.

  25. 25.

    (The ICC only has jurisdiction over cases starting in 2002).

  26. 26.

    Sterio, supra note 23, at 206; see also 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. 12, available online.

  27. 27.

    Rome Statute, supra note 26, art. 17.

  28. 28.

    Id. art. 17(1)(a).

  29. 29.

    Eboe-Osuji, supra note 15.

  30. 30.

    Sterio, supra note 23, at 205.

  31. 31.

    Eboe-Osuji, supra note 15.

  32. 32.

    Jennifer Trahan & Megan Fairlie, The International Criminal Court is Hardly a Threat to US National Security, Opinio Juris (Jun. 15, 2020), available online.

  33. 33.

    EO 13928, supra note 3.

  34. 34.

    Id.

  35. 35.

    Unusual and Extraordinary Threat, supra note 11, § 1702(b)(3).

  36. 36.

    IEEPA Origins, supra note 11, at 12.

  37. 37.

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

  38. 38.

    Id. at 3.

  39. 39.

    Id. at 35.

  40. 40.

    Smith, supra note 16.

I think the foundation of law and the principles of fundamental justice allows on an independent complaint from any state party, is sufficient to provide jurisdiction where American laws are of no legal justification to be enforced such as on Afghanistan. Afghanistan is an independent state, with its own laws and conscience, constitution, and citizen groups.

To have America influence an impartial investigation within Afghanistan lands at the request of that state party, in my opinion amounts to America being treasonous to Afghanistan as the reason why they landed there, and shows evidence that America solely went to Afghanistan for want of jurisdiction on Afghanistan, including impeding with jurisdiction only Afghanistan has within the framework of the Rome Statute.

I also believe that American crimes if committed on Afghanistan even when investigated by America is a crime on Afghanistan and Afghanistan should make its own decisions concerning prosecution of those individuals, under laws of Afghanistan. Where the ICC is without jurisdiction if that is the case.

The US Executive Order is unreasonably expansive and appears to apply to potential ICC investigations against unspecified "allies". In this respect, the US Executive Order is an escalation of a policy which has been in place since the American Service Members Protection Act of August 2, 2002 and a series of Article 98 Agreements aimed at precluding the extradition of US citizens to the Court. Several ICC State Parties signed these agreements with the US. The Assembly of State Parties of the ICC did not take measures then to counter this US policy or to question the commitment of the State Parties that signed these agreements with the US to their cooperation obligations towards the Court. As a panelist on the plenary discussion on cooperation and execution of arrest warrants organized by France and Senegal during the ASP that took place in the Hague in December 2018, I raised this problem and questioned the commitment of State Parties to their cooperation obligations when confronted with their other multilateral and bilateral treaty obligations. Not a single State Party present commented on my submission on this matter. The outpouring of support for the Court after the US Executive Order is lip service, half hearted and hypocritical. State Parties that signed the Article 98 Agreements should renounce them or use their diplomatic leverage with the US to resolve this problem.

How to Address the Legality of EO 13928 and the Never Ending Unilateral Punitive Measures: A View From Across the Atlantic

I. Introduction

Executive orders (or presidential decrees or whatever they are called in different jurisdictions) are what they are: the setting out by the head of state of actions to be pursued because he/she believes them to be in the best interest of his/her country, because they defend state sovereignty, promote foreign policy goals, and so on. Whether they are appropriate is a rather moot question (arguably, they cannot but be are since the head of state has expressed his prerogatives in this specific manner). As regards whether they are effective, (a) presumably one cannot judge effectiveness unless the executive order’s temporal validity has ended or it has otherwise been terminated (rescinded), and (b) its precise aim/s will have to clearly defined before one is able to measure its effectiveness. For example, had Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal not been adopted, how many US nationals would have been investigated and/or prosecuted by the ICC (if the goal is to protect US nationals from ICC investigations/prosecutions)?

On the other hand, what might be of more interest is to address EO 13928 within the context of the seemingly ever-expanding number of unilateral punitive measures (invariably the term ‘sanctions’ is employed), which are adopted solely or principally for pursuing national goals or aspirations or even for domestic reasons (e.g., to impress the electorate by attacking real or imaginary foes). To that extent, the term ‘autonomous sanctions’ has sometimes been used. The lack of any involvement by parliament (a generic term to describe a group of individuals who were freely elected by the power-holding citizenry to represent them) in executive orders should be regarded as problematic, irrespective of whether parliament would have objected or consented.

II. The Importance of the Affected Persons and Entities Being Able to Challenge the Legality of EO 13928 Due to Its Extraterritorial Effects

Moreover, it should be irrelevant whether the incoming in January 2021 US administration will revoke EO 13928 and whether this will be another showing of pursued multilateralism. The mere existence of an EO, as indeed the existence of any legally binding instrument emanating from a state authority, especially one that envisages the imposition of punitive measures, has tangible results. It directly affects one or more individuals (regardless of whether they are named or not, regardless of whether they are affected in a personal capacity or in an official/ professional capacity and regardless of nationality) and possibly affects organizations (in the broad sense of the word to include international institutions, like the ICC, as well). Therefore, on account of the reaction (the EO being the action), those being (actually or potentially) affected should be able to judicially attack it, seek its annulment, seek compensation if damage can be proven, etc. In our case, it is not only the ICC prosecutor and other officials, who should enjoy unfettered locus standi, but it should also be the ICC itself. The ICC is an international institution having, under Article 4 ¶ 1, of the Rome Statute, international legal personality and, therefore, in principle, the right to sue. Of course, this is separate from domestic legislation allowing at all times to bring an action against an EO before domestic courts. The right of aliens to challenge the legality of legislative acts, which have been adopted by foreign states and without first being heard, has always been restrained on account of their nationality, on account of distance from the forum, etc.

Another aspect of EO 13928 is that it has extraterritorial effects, and this is, I believe, another characteristic of the kind of legislative instruments containing unilateral punitive measures. Ideally, the legality of such instruments would be tested before supranational courts of justice or quasi-judicial entities, under procedures that would ask the court / entity in question to fully take into consideration legitimate national interests and foreign policy goals (protecting one’s citizens is such an interest, ensuring impunity for one’s citizens is not). And one should also discuss what opposition to EO 13928 might be brought by entities such as the ICC Assembly of States Parties or by the states of nationality of the affected ICC officials by exercising diplomatic protection. All is all, it is not inconceivable that such litigation could be brought, depending of course on the prevailing circumstances and the applicable conditions, before the International Court of Justice, before regional human rights courts, or before the UN treaty-based bodies.

III. The Political Dimension of International Opposition to EO 13928 and Its Limitations

But one should also think of the political opposition expressed by international organizations. For example, the role that the UN General Assembly nay paly. Let’s look at the latest relevant UNGA decision (Res. 75/3 of 2 November 2020 titled ‘Report of the International Criminal Court’). Several delegations speaking during the deliberations on the draft Resolution (UN Doc. A/75/L.5) did castigate the US sanctions as they “undermine the independence of the Court”. To give an indication of the reaction, China called the US measures “bullying practices and power politics”, Belgium argued that they “violate essential values and interests” and the State of Palestine rebuked them because they “reflect a misplaced sense of superiority” (Press Release, United Nations, GA/12280, General Assembly, Adopting Draft Upholding International Criminal Court’s Goal to End Impunity, Calls for Cooperation in Arresting Fugitives (Nov. 2, 2020) available online). However, Res. 75/3 did not actually record the disapproval of a majority of Member States on account of a fellow Member State having taken what amounts to punitive action against an UN associated international institution and its officials. The reason might lie in the explanation given by the representative of the Netherlands, which introduced the draft Resolution, as to why it reflected a technical rollover from the Resolution which had been adopted the previous year, namely Res. 74/6 of 4 November 2019. The representative said that “much has happened regarding the Court that is not reflected in the draft, as COVID‑19 restrictions made it hard to have meaningful discussions about its content” (ibid).

But even if, for the sake of argument, all these accusations had found their way into the text of the UNGA decision, would anything have changed? Even if the USA was referred to by its name in the text and not as ‘a certain country which has imposed unilateral sanctions upon the ICC Prosecutor and other officials’? The simple and straightforward answer is ‘no’. And if one has any doubts, what better example that the myriad UNGA decisions demanding that the US administration ends the embargo against Cuba? 2019 marked the 28th consecutive year that the UNGA adopted a decision to that effect (Resolution 74/7 of 6 November 2019 titled “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba”). This reflects a reality: we have been used to treating UNGA decisions as meaningless documents, having no true authority, as texts reflecting solely the wishes and beliefs of the group of states which controls developments in the UNGA. On the other hand, when conveniently, certain UNGA Resolutions have been elevated to the status of binding treaties (e.g., Resolution 217 A (III), Resolution 2625(XXV)), and one will be ready to accept without hesitation its role as “the most representative global forum” (as characterized by the Parliamentary Assembly of the Council of Europe in its Report “Parliamentary dimension of the United Nations”, Doc. 10771, 21 December 2005).

IV. Conclusion – Why Determining the Legality of EO 13928 Under International Law Is Important

The present short note has focused on the ways and means to address, from outside the US, legislative instruments such as EO 13928, which have consequences for (a) individuals, who are not ordinarily within the US jurisdiction but against their will they are brought with it, and (b) international institutions in which the USA does not participate because it has chosen not to and, consequently, has no vested interests. In reality, the impact EO 13928, if measured in the maze of unilateral punitive (counter)measures, autonomous sanctions, reprisals, etc. which have adopted and ordered by states and international organizations, is minimal, a mere drop in an ocean of retaliations. And it is also of no consequence that EO 13928 was proclaimed by a US President whose election campaign promise in 2016 was ‘America First’ and this motto has characterized his foreign policy (e.g., the withdrawal from the World Health Organization). Additionally, whether EO 13928 is vindicated under US Constitutional Law or whether it violates the First Amendment are naturally interesting questions, provided that its legality is actually challenged before a competent court of justice. And apparently this is not going to happen. The rhetoric of political condemnation and opposition is of course very welcomed but does not lead to anything substantive. At the end of the day, what matters for international lawyers is the answer to a simple question “Is EO 13928 legal under present-day public international law?”. If, as expected (see, inter alia, Colum Lynch, Biden Likely to Lift Sanctions on ICC Chief Prosecutor, Foreign Pol. (Nov. 25, 2020), available online.) the incoming US Administration abrogates EO 13928, this will not solve the question of the legality of this and similar legislative instruments. It is will be a nice symbolic move towards confirming its belief to multilateralism and to the ICC as a global project, which was championed by a previous US Administration, but the legal questions will linger until a new EO of a similar content is adopted.