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. ↩

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. ↩

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. ↩

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.