(Editor’s Note: This piece is part of Just Security’s ongoing coverage of Executive Order 13928, “Blocking Property of Certain Persons Associated With the International Criminal Court.” For more on this topic, readers can find the full collection here.)
The recent escalation in the ongoing conflict between the United States and the International Criminal Court (ICC) is as unfortunate as it is predictable, having come to a head with the creation of a new U.S. sanctions program directed against the ICC following an approved request to initiate an investigation involving alleged misconduct in Afghanistan. While the current level of tension may well be without precedent, the stage for the play we are all watching in disbelief now was built more than twenty years ago in Rome. The actors may have changed over time, but the plot has always been the same.
This play is about sovereignty and legitimacy — the ICC is not a sovereign, and in the absence of sovereign consent the court has no legitimacy. The call for justice recently published as an opinion piece from the president of the ICC may be inspiring, but it is also misleading. This escalating conflict is not about justice — it is about sovereign consent and the international balance of power.
Ratification, Domestic Interests, and National Sovereignty
As a matter of national sovereignty, submitting to the authority of the International Criminal Court requires a formal and explicit expression of consent. At current count, 123 States have formally expressed consent to be bound by the jurisdiction of the ICC by ratifying the treaty that created it, the Rome Statute. This means that they have consented for the ICC to investigate and potentially prosecute alleged crimes committed within their territories and by their citizens. The United States is not one of those States party. Without that expressed consent, the ICC should not expect the United States to cooperate with any investigation involving U.S. personnel acting in their official capacity on behalf of the United States.
To be sure, President Trump’s recent executive order imposing economic sanctions and a travel ban on anyone investigating or materially supporting an investigation of U.S. personnel by the ICC is severe and likely even counterproductive. The near-term potential benefit of dissuading a non-consensual international criminal investigation may well be eclipsed by the long-term risk of bolstering the case for traditional allies to rethink existing strategic alliances.
Many of the United States’ closest allies and trading partners have ratified the Rome Statute, and interfering with their domestic affairs through measures authorized by this executive order may prove more costly than the harm the sanctions are meant to address. This is especially true because ICC investigators would likely need access to U.S. territory to perform an adequate investigation — so the outcome the Trump administration hopes to achieve could almost certainly be accomplished with measures strictly within U.S. domestic jurisdiction.
Global Politics, the Like-Minded Group, and Institutional Image
Notwithstanding the potentially problematic sanctions enacted by the Trump administration, the latest escalation did not develop in a vacuum. The primary concern that prompted the United States to vote against the text of the Rome Statute during multilateral treaty negotiations more than 20 years ago was that the tribunal could stand above, rather than alongside, sovereign governments. As U.S. delegate Bill Richardson remarked during negotiations in Rome, “We are not here to create a Court that exists to sit in judgement on national systems or second-guess each action and intervene if it disagrees.” From the American perspective, the goal for the negotiations was to create a forum to adjudicate serious violations of international law where no State had the capacity to do so.
During the intense negotiations in Rome in 1998, a coalition of what became known as the “like-minded group” advocated in favor of an arrangement that would allow the tribunal to decide independently whether to exercise jurisdiction in relation to investigations initiated at the sole discretion of the Office of the Prosecutor. The like-minded group triumphed, and the ability of the ICC to independently authorize a criminal investigation and prosecution is now enshrined in the Rome Statute.
This development was widely celebrated at the time. Human Rights Watch, for example, pronounced that the agreement “created new strategic possibilities” and “represented a major achievement for the international human rights movement as a whole.” We are now witnessing the result of the like-minded group’s achievement — the current proceeding that would require the cooperation of a non-State party and the response of the American government to that proceeding are the predictable product of the acclaimed “new strategic possibilities” that emerged from the Rome Conference.
The president of the ICC, Dr. Chile Eboe-Osuji, refers in his recent opinion piece to a letter submitted to Congress by the New York City Bar Association that challenges the claim that initiation of the investigation into the alleged misconduct of U.S. personnel is political. Regardless of one’s opinions of the potential merits of the current ICC investigation, it is certainly political. It was a matter of global politics that motivated the like-minded group in Rome more than 20 years ago, just as it is global politics that calls for the controversial Afghanistan investigation by the ICC today.
While the creation of the Court represents a truly monumental achievement in the development of international criminal law, as an institution it has been the target of substantial criticism. Among the most pernicious criticisms, one that constitutes an existential threat to the legitimacy of the ICC is that the tribunal fosters an anti-Africa bias. As an institution that relies on the continuing cooperation of States that have ratified the Rome Statute, even the appearance that the ICC unfairly targets any one State – let alone an entire continent – can inflict irreparable damage to the Court’s legitimacy.
Although there are compelling reasons for characterizing this condemnation as more a function of perception than reality, it is a central motivating factor for the current investigation involving U.S. personnel and the separate proposed investigation that could involve Israeli personnel. An information paper recently published by the Court, for example, refutes the allegation that the ICC only targets African countries by pointing to evidence that the “ICC is concerned with countries that have accepted the Court’s jurisdiction and these are in all continents.” And as Noah Feldman noted when addressing the decision of South Africa to withdraw from the Rome Statute, “The simple solution for the ICC” to counter the alleged anti-Africa bias “would have been to prosecute some — any — non-Africans.”
The impulse to take concrete action to counter the persistent allegation that the ICC harbors an anti-Africa bias is reasonable and quite understandable. What better way to silence the claim that the tribunal is “only one mechanism of neo-colonialist policy used by the West against free and independent countries” than to investigate personnel from the supposed neo-colonialist West? That the approved investigation involving Afghanistan and the proposed investigation involving Palestine would require the cooperation of States that have not ratified the Rome Statute — not to mention the unsettled matter of legal recognition of Palestine as a State — demonstrates the inherently political character of the proceedings.
As the head of the U.S. delegation, Ambassador David Scheffer, recalled during testimony to Congress in the days following the Rome Conference, the United States opposed the jurisdictional arrangement reflected in the treaty out of concern that “it will encourage overwhelming the Court with complaints and risk diversion of its resources, as well as embroil the Court in controversy, political decisionmaking, and confusion.” The current conflict between the international tribunal striving to validate its legitimacy to a global audience and the superpower that has refused to submit to the jurisdiction of the tribunal demonstrates the clairvoyance of Ambassador Scheffer’s concern more than 20 years ago.
Thwarting the Rule of Law?
The letter from the NYC Bar Association that Eboe-Osuji refers to laments that the U.S. refusal to cooperate with the ICC projects an image that the nation is “not only unwilling to adhere to the rule of law, but actively thwarting the rule of law.” What is not so clear from this assertion, however, is exactly which brand of the law the United States appears to be “actively thwarting.” In insisting on directly investigating allegations involving personnel from a State that has not consented to the jurisdiction of the ICC, it is the tribunal that is attempting to reformulate the consent-based international legal order.
The United States has ratified a whole host of multilateral treaties and has thereby consented to be bound by the terms of those treaties. The United States, just like any other State, decides to what degree to cede a portion of national sovereignty in the interest of international peace and unity. Like all States, the government of the United States makes those decisions independently pursuant to established domestic processes on the basis of its own national interest.
Thus far, no presidential administration has assessed that sufficient domestic political support exists to even submit the Rome Statute to the Senate for advice and consent. Concern that the ICC will assume the role of supranational rather than international criminal tribunal has prevented political support in the United States, and the current creative jurisdictional adventures of the tribunal only add fuel to the anti-ICC fire.
Because the United States has not provided evidence of accountability that is satisfactory to the court of global public opinion, the ICC is now “insisting that justice based on evidence must be pursued by somebody, somewhere — if not in the United States or Afghanistan, then at the ICC.” Just take a moment to reflect on this revelation. The president of the International Criminal Court has just expressed that the tribunal is insisting on pursuing this matter even though an effective investigation and potential subsequent adjudication would require the cooperation of a State that has never consented to the jurisdiction of the tribunal.
Exactly what is Eboe-Osuji’s proposed solution? As he suggested in an interview shortly after the opinion piece was published, “if the U.S. considers that it is adequately addressing the allegations of crimes through its own courts, or that they have done that already, then this is the moment to inform the Court and bring that question before the judges.” This suggestion demonstrates precisely the character of a “Court that exists to sit in judgement on national systems or second-guess each action and intervene if it disagrees” described by Bill Richardson at the Rome Conference that led to the United States to reject the treaty in the first place. That a State can ratify the Rome Statute and consent to such second-guessing is undoubtedly a matter of national prerogative; that the president of the tribunal now suggests this as the solution for a State that has not ratified the Rome Statute and therefore has not recognized the jurisdiction of the Court is unfathomable in the existing consent-based international legal order.
No Ratification, No Consent, No Cooperation
The letter from the NYC Bar Association to Congress is correct to observe that the United States “has historically been a leader in the field of international justice.” The current conflict with the ICC is not about international justice — it is about national sovereignty and the supreme value of self-determination. The International Criminal Court should not expect cooperation with an investigation conducted by a tribunal created by a multilateral treaty the United States has never ratified.
President Bill Clinton did sign the Rome Statute in the final days of his administration, although the signature was revoked by a subsequent administration and the United States has never re-signed and certainly not ratified the treaty. Even in signing the treaty, President Clinton expressed the concern that the ICC “will not only exercise authority over personnel of states that have ratified the treaty but also claim jurisdiction over personnel of states that have not.”
Recent developments have demonstrated that this concern was justified. Although economic sanctions may prove to be counterproductive in the long run, at least the current message should be crystal clear if it was not previously. Even though the Rome Statute provides a sufficient territorial nexus for the current investigation — by way of the ratification and therefore consent of the States where the alleged acts occurred — the international legal order remains founded on sovereign consent.
Thus, the ICC should expect the government of the United States to protect what it identifies as its national interests and refuse to cooperate with a proceeding in an international tribunal created by a multilateral treaty that has not been accepted into U.S. law. In the future, the ICC should continue to expect this uncooperative response — even if the president of the tribunal insists otherwise.