International Courts Reporter Series: New Sanctions on Ice

Introducing the FBA International Courts Legal Reporter Blog Series. This series will report on jurisdictional elements, developments in active cases, legal community initiatives, and other relevant topics in the wide range of international courts and tribunals that operate at the Hague, including the International Court of Justice, the International Criminal Court, and multiple ad hoc tribunals. For more information, contact Emma Tsankov, emma.g.tsankov@gmail.com.


New Sanctions on Ice: The U.S.’s Case Against the ICC
By: Emma Tsankov1
FBA International Courts Reporter
January 30, 2021

Recent U.S. sanctions brought against the leadership of the International Criminal Court (ICC) have pushed an already rocky relationship onto an even more contentious standing. On September 2, 2020, former U.S. Secretary of State, Mike Pompeo, pursuant to a June 2020 Presidential Executive Order, issued sanctions against two top ICC officials, freezing their personal U.S. assets. This unprecedented move has forced the international community to reevaluate what justice means on a global level and what role the ICC should play in securing it.

The Executive Order stems from action taken in 2019 by ICC Chief Prosecutor, Fatou Bensouda, following her request to open an investigation into the actions by Taliban, Afghan, and U.S. forces in Afghanistan during the period 2003 to 2014.2 While the U.S. is not party to the ICC, the Court may look into potential crimes committed by any foreign nationals in the territory of a member state, in this case Afghanistan. The ICC’s Pre-Trial Chamber officially rejected Bensouda’s request on the grounds that such an investigation would not be in Article 53’s “interests of justice.”3 This decision was overturned by the ICC Appeals Chamber reasoning that the “interests of justice factor” should not have even entered into their decision.4 The Appeals Chamber held that the only proper consideration was whether there was a legitimate factual basis for bringing an investigation.

In response to the ICC’s initiation of the investigation, former Secretary Pompeo issued sanctions against both Ms. Bensouda and the head of the Jurisdiction Division, Phakiso Mochochoko. This action and the legality of the Executive Order has met with resistance, and in early January 2021, a New York Federal Judge issued a temporary stay of the Executive Order finding that the sanctions have the potential to infringe illegally upon the free speech of the human rights lawyers who engage in work with the ICC’s Office of the Prosecutor.5 The Executive Order calls for sanctions against “any foreign person” (emphasis added) determined to have directly engaged in the ICC’s investigation into the alleged wrongdoings of U.S. forces in Afghanistan.6

The U.S. and the ICC have operated with longstanding unease dating to the foundational negotiation of the Rome Statute in 1998. Despite its initial enthusiasm for the creation of various ad hoc tribunals for Rwanda and Yugoslavia, the U.S. position of the Clinton Administration grew increasingly wary about the potential of having American soldiers investigated without U.S. permission, with overarching concern for the protection of U.S. defendants from ICC prosecution.7 While the Clinton Administration did sign the Rome Statute, its ratification was deliberately left to his successor. Under the successor Bush Administration, relations cooled heavily as the U.S. nullified its signature to the Rome Statute, opting instead for an “empty chair policy.”8

The Obama Administration resumed enhanced cooperation, providing a somewhat greater degree of support for ICC investigations and prosecutions.9 However, under the Trump Administration, the global community has witnessed a marked chilling of relations between the ICC and the U.S. Former National Security Advisor, John Bolton has lodged heavy criticism of the ICC, charging that it has far-reaching powers and a lack of sufficient accountability,10 Claims later echoed by Mr. Pompeo in his issuance of sanctions, invoking claims of illegitimacy.11 It is worth noting that the former Administration has also denounced potential ICC investigations into political ally Israel’s alleged misconduct against the Palestinians based on its long-standing objection to the Court’s jurisdiction over non-party states.12 However, under the new administration, we can likely expect a return to the Obama-era relations between the US and the Court. The Biden Administration has already spoken of its support for reforms to encourage a greater level of cooperation with the Court, with these sanctions currently up for review.13

There is no doubt that ICC prosecutions have de-facto global, geo-political ramifications. The question remains how these concerns should be balanced in the pursuit of justice in the context of international law. Article 53’s “interests of justice”14 language has been the subject of ample debate amongst academics and practitioners alike due to its ambiguity, and susceptibility to differing perceptions about whether the term relies on traditional redistributive forms of justice which limit the Prosecutor’s concern solely to the gravity of the crime and the rights of victims, or to broader, more holistic conceptions of justice.15 Today, in the midst of another swing of the political pendulum, it remains to be seen how justice will be defined in the global fight against impunity, and what role the U.S. will play in this endeavour.

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Endnotes

1The author is an LLM candidate in European and International Law at the University of Amsterdam. She is the FBA International Courts Lead Student Liasion.
2 Kate Clark, “Ferocious Attack on ICC: Washington Threatens Court if it Investigates Alleged US US War Crimes in Afghanistan,” Afghanistan Analysts Network, September 12, 2018, http://www.afghanistan-analysts.org/wp-content/uploads/wp-post-to-pdf-cache/1/ferocious-attack-on-icc-washington-threatens-court-if-it-investigates-alleged-us-war-crimes-in-afghanistan.pdf
3 Anthony Dworkin, “Why America is facing off against the International Criminal Court,” European Council on Foreign Relations, September 8, 2020, https://ecfr.eu/article/commentary_why_america_is_facing_off_against_the_international_criminal_cou/.
4 “Afghanistan: ICC Appeals Chamber authorises the opening of an investigation,” Press Release, International Criminal Court, March 5, 2020, https://www.icc-cpi.int/Pages/item.aspx?name=pr1516.
5 Hailey Konnath, “Trump’s Move To Sanction ICC Officials On Hold, For Now,” Law360, January 4, 2021, https://www.law360.com/articles/1341628/trump-s-move-to-sanction-icc-officials-on-hold-for-now.
6 Executive Order on Blocking Property Of Certain Persons Associated With The International Criminal Court, Section 1, June 11, 2020.
7Leila N. Sadat and Mark A. Drumbl, “The United States and the International Criminal Court: A Complicated, Uneasy, Yet at Times Engaging Relationship,” Washington University in St. Louis Legal Studies Research Paper Series (July 2016): 2-3.
8 Ibid., 6.
9 Ibid., 7-8.
10 John Bolton “Protecting American Constitutionalism and Sovereignty from International Threats,” Speech at The Federalist Society, Washington D.C., September 10, 2018.
11 Michael R. Pompeo, “Actions to Protect US Personnel from Illegitimate Investigation by the International Criminal Court,” Press Statement, September 2, 2020.
12 Michael R. Pompeo, “The International Criminal Court Unfairly Targets Israel,” Press Statement, December 20, 2019.
13 Simon Lewis, “Biden Administration to Review Sanctions on International Criminal Court Officials,” Reuters January 26, 2021, https://www.reuters.com/article/us-usa-biden-icct-idUSKBN29V2NV.
14 Rome Statute of the International Criminal Court (1998), Article 53.
15 Drazan Dukic, “Transitional Justice and the International Criminal Court – “in the Interests of Justice”?” International Review of the Red Cross 89, No. 867 (September 2007): 696 – 698, https://www.icrc.org/en/doc/assets/files/other/irrc-867-dukic.pdf.

About the Author

Emma Tsankov is an LLM candidate in European and International Law at the University of Amsterdam. She is the FBA International Courts Lead Student Liasion.

About the FBA

Founded in 1920, the Federal Bar Association is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. Our more than 16,000 members run the gamut of federal practice: attorneys practicing in small to large legal firms, attorneys in corporations and federal agencies, and members of the judiciary. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors. Visit us at fedbar.org to learn more.