US sanctions against the ICC in international law
The question of whether US sanctions against the International Criminal Court (ICC) and some of its officials are violating international law turns on whether a state can counteract the fight against impunity for crimes under the ICC Statute. Before answering this question, it is first necessary to review the context and nature of these sanctions (I) before considering whether they violate international law (II).
I. Background and nature of US sanctions against the ICC
The American hostility to the ICC is not new.In 2002, soon after the entry into force of the Rome Statute, the United States (the U.S.) sought and obtained from the Security Council an “immunity from prosecution” by the ICC against officials and personnel of United Nations peacekeeping operations.Second, a “categorical privilege”[1] was granted through Resolution 1593 of 31 March 2005 (on Darfur) which excludes nationals of states not parties to the Rome Statute from the Court’s jurisdiction in the situation in Sudan. The same is also captured in Resolution 1970 of 26 February 2011 on Libya.At the same time, the US continued to sign bilateral protective agreements (99 came into force).[2] Furthermore, American Service Members’ Protection Act (ASPA), was published in 2002. The law prohibits any U.S. court, federal agency or entity from cooperating with the ICC. It also prohibits any transfer to the ICC of U.S. national security documents,[3] and provides that the U.S. President “is authorized to use all means necessary and appropriate” for the release of persons detained by or on behalf of the Court if they are “covered United States persons” or “covered allied persons”.[4] This is a “hostile” law to the Court.It has been described as an “The Hague Invasion Act” because it allows the use of force to release any U.S. or allied citizen who is detained by the Court (at The Hague).However, since the Vietnam War, there has been a consistent Congressional practice of authorizing the use of force (an explicit authorization with reference to the 1973 War Powers Resolution).[5]
It was on the basis of ASPA 2002 that the Trump administration decided in June 2020 to impose economic sanctions to deter the ICC from prosecuting US military personnel for crimes they allegedly committed in the context of the armed conflict in Afghanistan.These US sanctions follow the decision of the ICC Appeals Chamber of 5 March 2020 authorizing the Prosecutor to open an investigation for crimes within the ICC’s jurisdiction related to the situation in Afghanistan. The US openly rejects the ICC for what it is or what it does.[6]
On 2 September 2020, the Trump Administration executed its threat against Court officials, particularly Ms. Fatou Bensouda (Prosecutor of the ICC) and Mr. Phakiso Mochochoko, Director of the Jurisdiction, Complementarity and Cooperation Division within the Office of the Prosecutor. These individual sanctions include freezing their assets in the US, prohibiting access to the US financial system and prohibiting visas, etc.
Several international, regional and national organizations, and ICC member states (France, Lesotho, Gambia, etc.) reacted against these US sanctions.Let us now look at how these sanctions violate international law.
II. US sanctions through the lens of international law
a) Is the United States violating its international law obligations?
Independent of the ICC, all states have committed themselves to repress genocide, war crimes and crimes against humanity, whether it be under the 1948 Convention on the Prevention and Punishment of the Genocide,[7] the 1949 Geneva Conventions,[8] customary international humanitarian law,[9] etc.In addition, States have pledged to “cooperate to ensure universal respect and the implementation of human rights and fundamental freedoms for all” (Declaration on Friendly Relations, A/RES/2625 (XXV), principle 4).By punishing ICC officials for doing work that all states have committed to do, the U.S. is violating these commitments and the rules that bind them even though they are not a state party to the Rome Statute.Similarly, by prohibiting Prosecutor Fatou Bensouda from travelling to the United States, they are violating the Headquarters Agreement between the United States and the United Nations based in New York.Under this agreement, the US must provide the facilities (including visas and security) to all representatives of Member States and international organizations working in cooperation with the United Nations.This is the case of the Prosecutor of the ICC, who goes each year to New York to make her report to the United Nations Security Council (concrete case of imminent blockage, which could be the basis of the collateral violation of the Negotiated Relationship Agreement between the ICC and the United Nations).
b) Liability for Internationally Wrongful Act
The unlawful nature of their sanctions must first be determined (see point a). From this unlawful nature derives the liability of the U.S. This consequence is based on customary international law codified by the International Law Commission in the Draft articles on the Responsibility of States for Internationally Wrongful Acts (2001).Any state could therefore invoke the responsibility of the U.S. for its internationally wrongful acts.States may protest, or even trigger a judicial or arbitral procedure that the U.S. will obviously not accept.
It is also possible to refer the matter to the United Nations General Assembly (UNGA) to obtain a political and diplomatic condemnation of the United States' behaviour.
As for the ICC officials who would be affected by these sanctions, they can seek redress in the U.S. courts under international law;it would not be easy, but it is imaginable. They also have the option of filing an administrative appeal with OFAC (The Office of Foreign Assets Control), an American agency reporting to the Department of Justice, which is responsible for financial reporting and enforcement of sanctions.They will be able to demonstrate to OFAC that these sanctions are not justified under international law.
Finally, the regime of diplomatic protection may apply to both officials (either the Court invokes functional protection or the State of the nationality invokes diplomatic protection).
However, to sanction the ICC or its officials for their actions in the fight against impunity for perpetrators of crimes under international law is to violate international rules that bind the US.
[1]Julian Fernandez, « Les Etats-Unis et la Cour pénale internationale », in Julian FERNANDEZ, Xavier PACREAU et Muriel UBÉDA-SAILLARD : Statut de Rome de la Cour pénale internationale, Commentaire article par article, deuxième édition, Pédone, Paris 2019, p. 218.
[2]Id. p. 219
[3]Ibid. p. 218.
[4]Ibid. p. 218.
[5]Ibid.
[6]Julian Fernandez, op. cit. p. 228.
[7]« Les parties contractantes confirment que le génocide, qu’il soit commis en temps de paix ou en temps de guerre, est un crime du droit des gens, qu’elles s’engagent à prévenir et à punir ». Art premier de la Conv. de 1948.
[8]« Chaque Partie Contractante aura l’obligation de rechercher les personnes prévenues d’avoir commis, ou d’avoir ordonné de commettre, l’une ou l’autre de ces infractions graves… ». L’art Commun 49/50/129/146 des CG. Cité par Eric David, Principes de droit des conflits armés,Bruylant, 6èmeéd, 2019, p. 902, §. 4. 64.
[9]Voir les droits des Nations Unies pour lutter contre l’impunité des violations du DIH.