Some two hours after the Nobel Prize Committee announced the award of the Peace Prize to Navi Pillay for her work on international law and the establishment of international accountability for atrocity crimes, the US government struck back.  Secretary of State Marco Rubio announced a significant escalation in the US campaign against the International Criminal Court (ICC). ‘Either the ICC will end its threats, or we will end the ICC,’ he declared.

This contribution considers the underlying legal tension, analyses a series of steps in the escalating US policy against the Court, and considers the response by its supporters.

An international constitutional clash

The US objection to the powers of the ICC resonates with a core principle of the classical international system that has persisted to this day. That principle holds that no state can be subjected to an international mechanism to authoritatively determine whether or not it is in compliance with the legal rules it has accepted, unless it specifically consents. Hence, the International Court of Justice and other international tribunals, including human rights bodies, can only become active in relation to states that have signed up to them.

The US and some other non-party states to the ICC Statute like Israel, Myanmar under its present dictatorship, and the Russian Federation under Putin, argue that no international regime administering individual criminal responsibility can be applied against their nationals, as they have not subscribed to it.

However, under Article 12 (2) of the ICC Statute, the Court has jurisdiction where the state of nationality of the offender, or the state of the location of the offence, is a party. Hence, US service-members active in foreign states that have signed up to the Statute would be exposed to action by the Court if they commit atrocious crimes.

Given the propensity of the US to use its forces abroad, this is seen by the US authorities as an unacceptable risk.

The US asserts that its forces are uniquely exposed to ICC jurisdiction, given the need to deploy its military power for international public purposes around the globe. But after the controversial military operations against Iraq in 2003, Venezuela early this year, and at present against Iran, this explanation seems less persuasive.

The ICC conundrum

The ICC has ruled in a case concerning non-member Myanmar that the 120 founding parties to the Rome Statute had the ability to create an institution like the ICC, even if this did not include literally all states of the world. In that case, the Court claims ‘objective personality’ for itself (para 48). That is to say, it is an institution that can exercise its powers in the common interest of all states, even if it is only established by a majority.

The United Nations, too, was only created by a majority of states, but has claimed authority where international peace and security is concerned in relation to all of them, the Court argued when addressing Myanmar, basing itself on the Reparation for Injuries Advisory Opinion (para 37, citing Reparation for Injuries at p. 185).

This argument is somewhat daring. The establishment of the Court in 1998 may not have been quite the foundational international constitutional moment akin to creating the post-World War II international order in the shape of the UN Charter in 1945.

Still, international courts have now accepted that any state has a sufficient legal interest and standing in relation to grave international crimes of concern to the international community as a whole to bring an international action against the state commissioning it, provided a jurisdictional link exists. No particular nexus is required. Indeed, in the ICJ action against Israel over Gaza, the respondent did not even seriously question the right of South Africa, as a third state that was not directly involved, to bring the case.

Where individual responsibility is concerned, all states have long had the right to try foreign individuals for grave war crimes, crimes against humanity, ethnic cleansing, or genocide anywhere on the globe under the doctrine of universality. Any state apprehending a Nazi war criminal, or a Rwandan genocidaire, has the legal authority to try him or her before its national courts, acting as an agent of the international constitutional order.

If individual states have this authority to try foreigners for committing atrocities abroad, they should also be able to pool that power and assign it to an international institution.

Moreover, any state can exercise its own territorial jurisdiction against foreigners committing crimes on its territory, including international crimes. A foreigner venturing onto foreign territory accepts that he or she is subject to the jurisdiction of that state. As Ukraine is demonstrating just now, there is no inherent immunity protecting service members from prosecution for grave war crimes in the country they may have invaded.

Accordingly, there is nothing that would preclude the assignment by a state of the authority to try foreign forces committing atrocity crimes on its territory to an international tribunal.

This is not a substantive interference with the rights of a non-party home state of an accused person. It is merely a procedural innovation, based in, and justified by, the combined claims to jurisdiction over that individual already held by the individual ICC state parties under the universality and territoriality doctrines.

Where the rights of the accused, rather than those of the home state, are concerned, the ICC Statute and rules of procedure carefully reflect all the protections of human rights and fair trial guarantees that would, or should, appertain in domestic proceedings.

The principle of nulla poena sine lege applies to the substantive definition of the crime, not the process of its prosecution. In any event, under Article 11 of the Statute, the Court only operates, prospectively, in relation to crimes commissioned since its establishment, or the date of participation of a new member of its Statute.

US action against the Court

The US battle against the Court has been waged in a series of steps. First, even during the negotiations of the Statute, strong US insistence on the complementarity principle means that any state can remove a case from the Court if it exercises jurisdiction instead.

The Clinton White House signed the Statute in 2002. However, the successor, President George W. Bush, then ‘unsigned’ the treaty and Congress adopted the now famous ‘Hague Invasion Act,’ more formally known as the American Service-Members Protection Act.

The Act commits the US to non-cooperation with the ICC and threatens other states cooperating with the Court with sanctions. Moreover, it suggests that the US will undertake ‘any means necessary and appropriate to free US or allied service members’ held captive at The Hague.

The US also negotiated some 100 bilateral agreements with state parties, committing them to non-cooperation with the Court where the US is concerned. This exploits Article 98, which was rather intended to prevent a clash between the Statute and what was assumed would be mainly pre-existing arrangements concluded by individual states.

With the coming into force of the ICC Statute in 2002, the US achieved Chapter VII Resolution 1422 of the Security Council, suspending potential ICC action in advance, at least against non-member nationals involved in UN-established or -authorized operations.

Under Article 16 of the Statute, a dispensation of this kind can only be granted for one year at a time. It was renewed in Resolution 1487 of 2003. However, after the scandal of the treatment of prisoners in occupied Iraq by US forces at Abu Ghraib, no further extension was approved by the Council.

Still, the US did not veto the Security Council resolutions referring the situations in Darfur (Resolution 1593 (2005), para 1) and Libya (Resolution 1970 (2011), para 4) to the Court, apparently accepting the role of the ICC in relation to non-member states, at least when backed by the Council exercising Chapter VII powers.

The US also welcomed the arrest warrants against Vladimir Putin and Maria Alekseyevna Lvova-Belova of Russia over Ukraine. Then US Secretary of State Antony Blinken urged all states to comply. Kiev had accepted the application of the Statute to its territory before the invasion, thus exposing the invading Russian forces to its reach, despite the fact that the Russian Federation is not a member.

Afghanistan and Gaza

The next step in the US strategy has been directed against individual members of the Court. In June 2020, the first Trump administration resumed the campaign against the ICC with travel restrictions and asset freezes directed at senior ICC staff, including the then Chief Prosecutor, Fatou Bensouda.

The Prosecution had launched a preliminary investigation of potential crimes committed during the armed campaign in Afghanistan, a member of the Statute since 2003. Under huge pressure from Washington, the Pre-Trial Chamber concluded controversially in 2019 that it would not serve the interests of justice to proceed.

But in 2022, the Appeals Chamber overturned that decision, although arrest warrants have thus far only been issued against the Supreme Leader of the Taliban, Haibatullah Akhundzada, and some of his senior officials, rather than US service-members.

Soon after coming into office for the second time, President Trump re-ignited the campaign against the ICC. This was also triggered by the arrest warrants issued against Israeli Prime Minister Benjamin Netanyahu and then defence minister Yoav Gallant (along with senior Hamas commanders) in the wake of the October 7 atrocity and the subsequent armed campaign of Israel in Gaza. This represented a particular provocation for both the US and Israel beyond the issue of non-participation in the Statute, as they deny that Palestine is a state that could accept the jurisdiction of the Court, which it did on 1 April 2015.

The White House considered this ‘malign conduct’ threatening its national security and that of its allies, triggering further asset freezes, travel restrictions, and other measures. Thus far, sanctions have been adopted against some 17 senior members of the court. This includes the former Chief Prosecutor, judges, the President of the Court, Ms Tomoko Akane of Japan, and even a senior defence counsel, all supposedly involved in the Afghanistan and Gaza decisions.

This represents an unprecedented interference in the performance of the international judicial function and a fundamental denial of the rule of law, as has now been confirmed again by the UN High Representative on Human Rights, Voker Tuerk, the International Bar Association, Amnesty International, etc.

The latest hammer blow

The latest decision of the White House now extends sanctions to the institution of the ICC as a whole, rather than select officers of the Court, seeking to make its functioning impossible.

The US has announced that all property and interest in the property of the ICC in the US or in possession or control of US persons are blocked. Any transactions by US persons, or those within the US, or even just transiting the US, involving any such property is prohibited along with contributions for the benefit of any blocked person. Support for actions of the ICC are proscribed. Pension plans and activities related to present ICC detainees would remain exempt.

For now, a general licence has been granted suspending the effects of parts of this legislation for 180 days to allow the ICC to maintain or ‘wind down’ its operations. Much in the manner of showing the intended victim of medieval torture the instruments of their upcoming unpleasantness, the aim seems to be to show to the by now 125 members of the Statute what will come their way in April, unless they cave in to US requirements.

Firm response

The US attempts to unmake the global order through unilateral threats, punitive tariffs and sanctions, and even the use of force, was met with a fairly timid international response in the past. In this instance, the US is seeking to undo what is probably the greatest achievement in global order of the past half-century—the establishment of a universal accountability mechanism covering the most outrageous violations of human dignity.

It seems that middle powers are now determined to defend this advance. Canada, Denmark, France, Germany, Italy, Japan, the Netherlands, and the UK have already jointly rejected the US move as soon as it was announced. They have committed themselves to further support for the ICC, which will likely need to include steps to undermine the practical effects of the US measures, should they be fully implemented.

It remains to be seen whether critical members of the Court, in particular African states, will also rally to its defence at this point. They may either cave in to renewed US pressure, which has sought to impel some of them to leave the Court over the summer; or the existing parties may feel sufficiently provoked into a stand of unity in defence of the Court, whatever the past differences over its record.

In the past, attempts to isolate individuals connected to the Court from the effect of US sanctions have involved assisting judges and Court staff with their financial arrangements when faced with sudden termination of their accounts by their banks, and the denial of access to any holding they may have in the US. After the expiry of the grace period of 180 days, this would then need to extend to the activities of the Court as a whole, which will be an even more difficult task.

States supporting the Court in violation of Washinton’s demands, and companies outside of the US supplying it, may in the end face a further step of US ‘third party’ sanctions. On the other hand, a group of members of the European Parliament has already requested the application of blocking legislation by the EU. This would punish individuals or companies that comply with the US sanctions, placing them in the invidious position of facing punishment either by the US or the EU.

The EU Commission has called for a diplomatic settlement. However, at the same time it has signalled a firm commitment to ensure the continued operation of the ICC under its Statute. Thus far, it seems unlikely that the state parties will simply give in to US intimidation and remove the application of jurisdiction against non-parties from the Statute—a development that would undoubtedly also be welcomed by President Putin and the military junta in Myanmar. However, an amendment would require a vote of a two-thirds majority, and ratification by seven eights of members to enter into force for all of them—a very high hurdle in this instance.

The prospect of an exemption agreed by the parties reassuring just the US and its close ally, Israel, stipulating that they will not be troubled by ICC action in relation to conflicts carried out by their forces on the territory of state parties also seems difficult. So does a further Article 16 Security Council resolution, given the current international climate. Hence, the clash of jurisdictional claims seems bound to continue.

Image: Cezary Piwowarczyk, CC BY-SA 4.0