USA vs. the International Criminal Court: A Fraught History in the Quest for International Accountability for Atrocity Crimes
by Catherine Morris, LRWC Executive Director
First published in Slaw.ca on 19 May 2021.
The life of the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, became easier on 2 April 2021 when United States (US) President Biden lifted harsh economic sanctions against her that had been authorised by former-President Trump on 15 June 2020 and applied on 2 September 2020. Ms. Bensouda’s nine-year term ends in June 2021, and her successor, UK lawyer Karim Khan QC, will begin his term free of the threat of US sanctions against him. Human rights advocates around the world are also breathing more easily now that their efforts to seek accountability for perpetrators of international atrocity crimes are no longer constrained by “fear of punishment, including sanctions so serious that some characterize them as ‘economic death’.”
The US sanctions against Ms. Bensouda and a senior member of the ICC’s prosecution office, Phakiso Mochochoko, were of a kind usually reserved for perpetrators of war crimes, crimes against humanity, and genocide (collectively referred to as “atrocity crimes”). The Trump administration’s punishment of ICC personnel was shocking. The fact that the Biden administration took more than two months to rescind the sanctions was troubling, and in March 2021, Lawyers’ Rights Watch Canada (LRWC) weighed in to express serious concern about the worrying delay. Days later, on 2 April, LRWC welcomed the revocation of the sanctions with relief.
Decades of tension between the US and the ICC
Does the removal of sanctions against the ICC signal a change in the historically fraught relationship between the US and the ICC? This article explains the nature of the ICC as an international court of competent jurisdiction, the history of US animosity against the Court, and the reasons the attacks against the Court have been of deep concern to States Parties to the Rome Statute and human rights non-government organizations (NGOs), including LRWC. Also explored are the prospects for change to US policy now that the sanctions have been lifted.
The ICC was established by the 1998 Rome Statute of the International Criminal Court (Rome Statute). The Court began operating in 2002 when the Rome Statute came into force after ratifications by 60 States. The treaty has now been ratified by 123 States Parties, and an additional 33 States have signed it to indicate their intention to ratify. The US has never been a party to the Rome Statute. The ICC is currently investigating international crimes in 14 countries conducting preliminary examinations in 13 others.
Alleged war crimes related to the armed conflict in Afghanistan since 2002
In 2017, the Prosecutor made a request to the ICC’s Pre-Trial Chamber (PTC) for authorization to proceed with a formal investigation of the Situation of Afghanistan. Her preliminary examination, ongoing since 2006, had revealed alleged atrocity crimes committed by Taliban or Afghan forces in the armed conflict there since 2002. The Prosecutor’s request also noted “reasonable basis to believe” that war crimes had been committed “by members of the United States (‘US’) armed forces on the territory of Afghanistan, and by members of the US Central Intelligence Agency (‘CIA’) in secret detention facilities in Afghanistan and on the territory of other States Parties to the Rome Statute, principally in the period of 2003-2004.”
2018-2019: US threats against ICC judges and prosecutors
The potential for prosecution of US personnel triggered a surge of US hostility to the ICC. On 11 September 2018, former National Security Advisor John Bolton threatened that the US would use “any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.” He threatened to “ban its judges and prosecutors from entering the United States… sanction their funds in the US financial system, and… prosecute them in the US criminal system.”
On 15 March 2019, former US Secretary of State, Mike Pompeo, threatened economic sanctions and announced a policy “to deny and revoke US visas for ICC personnel who investigate alleged crimes committed by US nationals with possible extension of the policy to ICC investigations into suspected crimes by Israeli or other US-allied personnel.”
The US threats regarding Israel stem from the Prosecutor’s preliminary examination into the Situation in Palestine since 16 January 2015. Palestine had made a referral to the ICC upon ratifying the Rome Statute on 2 January 2015. On 3 March 2021, the Prosecutor formally opened an investigation into the situation in Palestine after the ICC Pre-Trial Chamber decided on 5 February 2021 that the ICC could exercize its jurisdiction in the Situation in Palestine. It is beyond the scope of this article to elaborate on the investigation into the Situation in Palestine, which Israel and the US oppose.
The US threats and visa restrictions in March 2019 met with expressions of concern by the President of the Assembly of States Parties to the Rome Statute, two UN experts, the American Bar Association, and a number of international NGOs including Human Rights Watch, the International Bar Association’s Human Rights Institute, and LRWC, which noted that a number of commentators “suggested that the ICC was successfully intimidated by the US threats, which means the threats have undermined the ICC’s reputation for independence.”
In April 2019, the PTC issued a widely deplored decision refusing the Prosecutor’s request to commence a formal investigation. A number of experts suggested that the PTC’s 2019 decision had been influenced by the US threats.
Undeterred, the Prosecutor appealed the PTC decision in June 2019. On 5 March 2020, the ICC Appeals Chamber unanimously overturned the decision of the PTC and authorized the Prosecutor to commence a formal investigation. Former US Secretary Pompeo immediately condemned the decision and again threatened “all necessary measures to protect US citizens: from the ICC.
June – September 2020: Swift and loud resistance to US sanctions against ICC personnel
On 11 June 2020, former-President Trump signed Executive Order 13928 which authorized sanctions against the ICC and its personnel. International condemnation was swift and loud.
Canada was among 67 countries signing a joint statement reconfirming their “unwavering support for the Court as an independent and impartial judicial institution” and committing to “preserve its integrity undeterred by any measures or threats against the Court, its officials and those cooperating with it.” On 25 June 2020, 33 UN independent experts denounced the US sanctions, saying they were “a direct attack” against the judicial independence of the ICC. The UN experts also noted that the threats “could also have potential adverse impacts on human rights defenders, civil society organisations and victims’ representatives who might be discouraged from cooperating with the ICC and, consequently, hinder the possibility of victims of atrocity crimes to access justice.”
In September 2020, specific sanctions against Ms. Bensouda and Mr. Mochochoko were announced pursuant to Executive Order 13928. The ICC immediately condemned the US move. The UN Special Rapporteur on extrajudicial executions, at that time Agnès Callamard, declared herself “speechless.” The UN Secretary General and several States, including Canada, also spoke out. Human Rights Watch said that the unprecedented asset freezes against ICC personnel showed “an egregious disregard for victims of the world’s worst crimes,” adding that the “Trump administration’s perverse use of sanctions, devised for alleged terrorists and drug kingpins, against prosecutors seeking justice for grave international crimes, magnifies the failure of the US to prosecute torture.”
In October 2020, two US-based NGOs and four law professors brought an action in the US Federal Court to challenge the sanctions. On 5 January 2021, a New York Federal Court agreed with the plaintiffs, found former-President Trump’s executive order to be unconstitutional, and granted a preliminary injunction against its enforcement.
On 26 January 2021, less than a week after President Biden’s inauguration, a US Secretary of State spokesperson responded to news inquiries saying: “Much as we disagree with the ICC’s actions relating to the Afghanistan and Israeli/Palestinian situations” the US administration would “thoroughly review” the sanctions. The sanctions, along with Order 13928, were revoked on 2 April 2021.
Does the ICC have legitimate authority to investigate and prosecute US citizens?
The US has had a mixed history with the ICC. The US took an active role in negotiation of the terms of the Rome Statute during the 1990s but opposed the final draft and voted against its adoption at a 1998 United Nations (UN) Diplomatic Conference convened by the General Assembly. The US, then under the Clinton administration, joined seven countries – China, Iraq, Israel, Libya, Qatar, and Yemen – in opposing the adoption of the treaty.
The chief objection of the US is based on the possibility that Americans could be prosecuted for actions they have undertaken pursuant to US foreign policy.
In 2000, the Clinton administration reversed the US position and signed the Rome Statute but did not send it to the Senate for ratification. The George W. Bush administration famously “unsigned” it in 2002. From 2002 to 2007 the Bush administration undermined the Rome Statute by coercing numerous States into signing “bilateral immunity agreements” to ensure that Americans would not be surrendered to the ICC. President Bush even authorized the use of force to free any US citizens that might be held by the court. Yet, in 2005, the Bush administration did not veto the UN Security Council referral of the alleged genocide in Darfur to the ICC. The Obama administration re-established a relationship with the ICC by becoming an observer State at the Assembly of States Parties to the Rome Statute but made no move to recommit to the Rome Statute. The Trump administration escalated the matter to an unprecedented level of hostility, revealing its contempt for the international rule of law and demonstrating an intention to deny justice to victims of atrocity crimes committed during the armed conflict in Afghanistan.
The longstanding position of the US is that the ICC should have no jurisdiction regarding States that have not ratified the Rome Statute. LRWC stands with the States Parties and proponents of the Rome Statute, who point out that the ICC does not investigate or prosecute States but individuals who have allegedly committed particular international crimes in the territories of States Parties.
The ICC examines, then investigates situations, in accordance with the terms of the treaty, to determine whether it has grounds to prosecute persons alleged to have committed “the most serious crimes of concern to the international community as a whole.” The ICC accepts jurisdiction only in situations of international crimes alleged to have been committed in the territories of the States Parties to the Rome Statute. The ICC is a court of last resort and takes jurisdiction only when relevant States are unable or unwilling to exercize their responsibility to investigate and prosecute atrocity crimes within their national jurisdiction. The ICC’s jurisdiction applies only to prescribed international atrocity crimes for which all States already have the responsibility to investigate and hold the perpetrators accountable under the principle of universal jurisdiction.
Afghanistan has local jurisdiction in cases of atrocity crimes committed in its territory – regardless of the nationality of the person who committed them. But Afghanistan has been unable or unwilling to hold alleged perpetrators accountable. As a State Party to the Rome Statute, Afghanistan is subject to the terms of the treaty, which allow the ICC to take jurisdiction when Afghanistan cannot or will not do so.
The US is free to pre-empt the jurisdiction of the ICC in the Situation of Afghanistan by undertaking its own investigations and prosecutions of Americans alleged to have committed atrocity crimes taking place in the territories of any of the States Parties to the Rome Statute. The US has an international law duty to do so, but has so far provided impunity for US officials involved in its infamous torture program. In 2014 US Senate Intelligence Committee found that the CIA had resisted efforts to investigate their alleged atrocity crimes in Afghanistan. LRWC has no confidence in US willingness to take the necessary steps toward effective, thorough, independent, impartial and transparent investigations and prosecutions in accordance with international standards.
Prospects for change under the Biden administration: The history of the US and the ICC
The Biden administration has given positive signals of respect for the international rule of law. However, it is not clear that there will be any fundamental change in US policy toward the ICC other than rescinding the Trump administration’s shameful sanctions and expressing encouragement “that States Parties to the Rome Statute are considering a broad range of reforms to help the Court prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes.”
The shape of the Biden administration’s policy towards the ICC remains unclear. The history of the US relationship with the ICC suggests it is unlikely that the US will ratify the Rome Statute. The Biden administration may return to selectively permitting UN Security Council referrals to the ICC. Even so, current allegations of atrocity crimes in Myanmar and against Uyghur people in China mean that US support of referrals to the ICC will be meaningless in the face of China and Russia’s veto power. LRWC hopes that the Biden administration will at the very least establish “a cooperative relationship with the ICC and its personnel that respects the international rule of law and the duty of all States to uphold its universal obligations to prosecute international crimes.”
