I read with interest the recent Just Security article by Uzay Yasar Aysev contemplating whether the International Criminal Court (ICC) might be able to hold relevant members of the Trump administration in contempt via Article 70 of the Rome Statute. While the analysis is both timely and astute, there are two primary potential limitations that materialize – one textual and the other conceptual. In this response to Aysev’s commendable article, I address here the potential textual and conceptual limitations in turn.
Before considering the potential limitations, I should clarify that, as indicated in my previous Just Security article on the topic, I believe the relevant Executive Order (no. 13928) targeting the ICC that is analyzed by both Aysev and I will ultimately prove to be counterproductive. If the United States continues to object to the ICC’s expansionist jurisdictional endeavors, doing so should remain a matter of domestic interest. Operationalizing any number of the provisions of the Executive Order, however, will interfere with obligations other states have accrued by virtue of ratifying the Rome Statute. The United States would do better to protect what it considers a vital national interest by refusing to cooperate with the Court without further alienating ICC member states – especially since many are close partners and allies.
Personal perspectives regarding the advisability of the Trump administration’s latest escalation in the simmering conflict with the ICC aside, the suggestion that the measures reflected in the Order targeting the ICC and any entity materially assisting the Court in a proceeding against an American official may constitute grounds for prosecution pursuant to Article 70 of the Rome Statute merits careful scrutiny. The potential textual limitation related to this suggestion is addressed first, followed by a potential conceptual limitation.
Textual Limitation: Sequencing and Jurisdiction
The textual analysis here picks up with Aysev’s observation that, “There do not appear to be any jurisdictional impediments to the ICC initiating contempt proceedings against the U.S. officials implicated in the creation and implementation of the sanctions regime.” His analysis is centered on a combination of a few specific provisions of Article 70 of the Rome Statute with a provision of the ICC’s Rules of Procedure and Evidence (RPE) that Aysev concludes allows the Court to exercise jurisdiction for Article 70 offenses “irrespective of the nationality of the perpetrator or the territory in which the act was committed.”
While I concur with this conclusion to a certain degree, there is a sequencing difficulty that does not appear to be addressed by Aysev’s analysis. This textual limitation materializes by operation of a combination of Articles 12(2)(a) and 13 of the Rome Statute. Article 12(2)(a) permits the ICC to exercise jurisdiction if an offense occurs on the territory of a state party. However, the textual root of this sub-article establishing the territorial “precondition to the exercise of jurisdiction” contains a limiting clause: “In the case of Article 13, paragraph (a) or (c).”
Turning then to the root of Article 13, subject matter jurisdiction is conferred “with respect to a crime referred to in Article 5” (emphasis added). There are four categories of Article 5 crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Combining this root with the textual limitation established in Article 12(2)(a) (and incorporating Articles 14 and 15 by virtue of reference there to “Article 13, paragraph (a) or (c)”) adds up to mean that only the Security Council can refer a case to the ICC involving a non-Article 5 crime. This textual reading of the relevant provisions of the Rome Statute prohibits the ICC from considering an Article 70 offense on the basis of territory alone – instead, a Security Council referral would be required.
The observation suggested by Aysev that Rule 163 of the RPE operates to allow the ICC to exercise jurisdiction related to Article 70 offenses “irrespective of the nationality of the perpetrator or the territory in which the act was committed to broaden the exercise of jurisdiction” is certainly correct. However, this observation is beset by a sequencing complication created by the baseline jurisdictional provisions examined above.
Rule 163 establishes that, subject to a few listed exceptions or clarifications, the Statute and the Rules “apply mutatis mutandis to the Court’s investigation, prosecution and punishment of offences defined in article 70.” A plain reading of the provision that follows even appears to expand on the jurisdictional scope of Article 70 offenses by exempting offenses against the administration of justice from nearly all of Part 2 of the Rome Statute, which includes the referral limitations described above. However, this potentially expansive interpretation of Rule 163 is disrupted by operation of Article 51(5) of the Rome Statute, which establishes, “In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.”
This conflict provision creates a sequencing challenge for the potential expansion of Article 70. Aysev is correct that Rule 163 can apply irrespective of territory and nationality, but in the conflict between the expansionary nature of Rule 163 and the jurisdictional requirements established in Articles 12 and 13, the latter must prevail.
In sequence, then, in the absence of a Security Council referral, the Court must first achieve cognizance of an Article 5 offense and then Rule 163 can operate to exempt Article 70 offenses against the administration of justice from the standard jurisdictional requirements. Initiating the latter part of this sequential equation without first satisfying the former part, as Aysev’s jurisdictional theory suggests, is rendered problematic by operation of the Rome Statute’s Article 51(5) conflict provision.
Although this textual journey is rather convoluted, the outcome is intuitive. Once the Court has assumed jurisdiction of an Article 5 offense, relying on the territorial provision or requiring a referral by a qualifying state or the Security Council to adjudicate allegations of Article 70 offenses would be cumbersome and unrealistic. However, decoupling Article 70 from the jurisdictional requirements established in Articles 12 to 15 and thereby permitting a standalone prosecution for offenses against the administration of justice in the absence of an existing Article 5 case, would permit circumvention of the otherwise decidedly high jurisdictional bar reflected in the treaty.
Conceptual Limitation: The Rome Statute and Customary International Law
Beyond the potential textual limitation, Aysev’s insightful suggestion that the ICC could initiate contempt charges in response to the severe provisions reflected in Executive Order 13928 raises an even more fundamental conceptual concern. In the absence of a treaty obligation or an assertion that Article 70 of the Rome Statute qualifies as customary international law, it is not clear that any national of a non-state party has a legal obligation to comply with the criminal provisions of Article 70.
To be sure, there are circumstances by which the Rome Statute and the RPE together contemplate exercise of jurisdiction for offenses against the administration of justice – as Aysev’s analysis and my own interpretation above describe. This textual possibility, though, raises the concern that the Court could be put in a position to exercise jurisdiction over a person who has no legal obligation to refrain from committing such offenses.
This potential conceptual limitation is founded upon the principle of legality, or nullum crimen sine lege (“no crime without law”). The impact of the legality principle is attenuated if only the “core” Article 5 crimes are considered. Since most of the prescriptions reflected in Article 5 of the Rome Statute are customary in nature, subject matter jurisdiction is not a concern for a state or international tribunal to prosecute these offenses (for reasons that are beyond the scope of the present discussion, I consider certain provisions within Article 8 and all of Article 8 bis to be excluded from this list of customary offenses).
Unless Article 70 of the Rome Statute is found to qualify as customary, however, only nationals of states that have ratified the treaty incur a legal obligation to avoid committing offenses against the administration of justice by the ICC. For nationals of non-member states, neither applicable treaty (certainly) nor customary (arguably) law function to criminalize these offenses.
Absent some other theory of liability, then, the principle of legality should prohibit the ICC as an institution from assuming judicial cognizance of Article 70 violations potentially committed by nationals of non-member states. By application of the principle of legality, this conceptual outcome seems to be mandated notwithstanding the textual possibility of such a prosecution if the jurisdictional sequencing requirements examined above are met.
Why it Matters: Legitimacy and Institutional Versus Judicial Independence
While the potential textual and conceptual limitations described above should be addressed before contemplating initiation of a standalone contempt proceeding, the suggestion and the underlying escalating conflict between the ICC and the United States reveal a possible distinction between institutional independence and judicial independence that should be addressed.
Aysev’s article correctly points out that the ICC has criticized the United States for improperly attempting to influence the “Court’s independent and objective investigations and impartial judicial proceedings.” While it is commendable that the “ICC stands firmly by its staff and officials” and condemns the “latest in a series of unprecedented attacks on the” Court by the United States, the ICC’s self-characterization that it is “an independent international judicial institution” is not entirely accurate.
This point is worth making in the present context because the issue of independence constitutes the focal point of the tension between the ICC and the United States (as well as other non-member states). Here, a distinction must be made between institutional independence and judicial independence. The ICC as an institution is not inherently independent – the Court and the textual provisions of the laws that are within its mandate to adjudicate are the product of a multilateral treaty to which, at current count, 123 states are parties.
Any state that has ratified the Rome Statute has thereby expressed consent to be bound by the terms of the treaty. If all 123 states were to withdraw from the treaty pursuant to the procedure established in Article 127, the Court and the Rome Statute would evaporate (one year after the final withdrawal is registered, that is). As an institution, it is not independent – the Court and the founding Rome Statute are wholly dependent for their continued existence on the states that have ratified the treaty.
While the institution does exist, any judicial proceeding initiated by the Court must be impartial and independent as a matter of fairness for all parties concerned. This matter of judicial independence must be scrupulously protected – and this is the central purpose of Article 70. Giving false testimony, corruptly influencing witnesses, bribing or intimidating judges or other ICC officials and the like, are all prohibited by the treaty because these actions can jeopardize the validity of specific proceedings and thereby endanger the rights of the accused or the very legitimacy of the outcome of that particular proceeding.
For a non-state party to refuse to cooperate with – or perhaps even to take measures to actively thwart – an investigation initiated by an international tribunal established by a multilateral treaty that the state has not ratified does not necessarily implicate the matter of judicial independence. This can be reasonably characterized as an exercise of legitimate sovereign authority to oppose and counteract institutional overreach – perceived or actual, depending on one’s perspective.
In the ongoing discussion of the “relationship” between non-member states and the ICC, the distinction between “impartial judicial proceedings” and the rather dependent “international judicial institution” should remain clear. The domestic opposition, which waxes and wanes in intensity depending on the political climate, expressed by the United States to the ICC ever since the final days of the Rome Conference in 1998, is directed at a degree of institutional independence that is perceived to exceed the Court’s mandate rather than at the judicial independence associated with any particular ongoing criminal proceeding.
Regardless of one’s opinions regarding the advisability of the Trump administration’s most recent escalation in the now two decades of conflict between the United States and the ICC, this perspective of framing the difference between institutional and judicial independence is useful. While the measures reflected in Executive Order 13928 will almost certainly be an impediment to the Court as it endeavors to achieve its aspirational preambular mandate “to put an end to impunity” for “the most serious crimes of concern to the international community as a whole,” the international legal mandate for the International Criminal Court remains derived from the sovereign consent of member states.
One potential method by which to explore the possibility of disincentivizing measures by non-member states to frustrate the institutional independence of the ICC is to consider initiating contempt charges, as Aysev’s astute analysis suggests. However, there are some potential textual and conceptual limitations that should be addressed before such a proposal could materialize into actual institutional practice.
Image: Exterior view of the International Criminal Court on July 20, 2018 in The Hague, Netherlands. (Photo by Ant Palmer/Getty Images)