Editorial #55: The International Criminal Court Between Strength and Strangulation
I had finished the manuscript for this editorial and was quite looking forward to the weekend. It was to be a rather philosophical piece on whether international criminal law is genuinely international, or rather a supranational expression of collective criminal authority. Thrilling stuff. But when news hit that the United States administration had sanctioned the International Criminal Court (ICC, the Court) as an institution – not “merely”, as before, individual elected officials and a staff member – I knew that it was back to the desk for me. Why does ICC-related (bad) news always get released on a Friday? Very annoying.
It was to be expected, yes. Throughout the last year, the United States administration had, on various occasions, verbally attacked the Court and announced further steps. The precise moment for this new level of hostility may well have been triggered by the announcement that Navi Pillay, human rights champion and former ICC judge, among others, had received the Nobel Peace Prize – a decoration President Trump had publicly declared himself worthy of in the past. But it may also be that the United States had not managed to convince a large enough number of States Parties to the Rome Statute to terminate their membership during the past months, despite Burkina Faso, Mali, Niger, Chad, Venezuela and Naoero having announced the step.
Principles
The United States had always been against the idea and, subsequently, the manifestation of an international criminal court. There were investigations into the United States’ activities in Afghanistan before the Court, but they were deprioritised and halted without result in 2021. Time and time again, the United States invokes interference into its sovereignty by virtue of the ICC’s jurisdictional territoriality principle. It is true that according to article 12(2)(a) of the Rome Statute, the ICC can prosecute crimes committed on the territory of a Member State, even when the perpetrator does not have the nationality of such a country. But this is in fact not indifferent to many national criminal systems, including that of the United States, which itself does not hold back on prosecuting and punishing foreigners who commit crimes on United States soil. In terms of sovereignty, such authority to enact jurisdiction is identical to that of those States which decide to delegate their criminal jurisdiction to an international court.
Furthermore, the principle of complementarity as prescribed in article 17(1)(a) of the Rome Statute makes it evidently clear that United States military activities on ICC Member State soil cannot result in indictments in The Hague so long as the United States’ (military) prosecutors and courts make use of their (extraterritorial) powers to genuinely prosecute and punish wrongdoings committed by their own nationals. These are matters for which the United States claims and asserts its own national responsibility; it thus itself has the power to prevent a case from becoming admissible before the ICC. The same is true for the United States’ strong ally Israel – the complementarity principle will have to be scrutinised at every procedural step by the ICC judges in this situation, a factor which should relieve all worry of States which, as they so claim, prosecute their own nationals for international crimes.
Politics
The United States administration portrays the Court as a body driven by political animus, motivated by hostility towards the United States. International criminal justice is quite well accustomed to accusations of politicisation, however mostly in the form of political selectivity. This is most notably the case among developing and African States, which view the Court as operating within a Western-dominated international legal order, reproducing colonial hierarchies, punishing and demonising the Global South at the hands and by the standards of their Western civilisers. This criticism is not without merit. Many of these States view the United States and its allies as instrumental in promoting this geographically and politically selective international criminal justice system which functions to shield powerful Western actors from accountability.
It seems irreconcilable, then, for both the accusation of bias and that of malice to be simultaneously true: That the Court can be both the wielding force of great power politics in the subjugation of the weak and, at the same time, a threat to the existence of that very great power which is the United States. The more logical conclusion is then that the more frustration and anger the Court instills in the political realm, in whatever corner of the world, the more it must be succeeding in its goal to promote that which seems to be the common enemy of many – accountability for international crimes. There is nothing political about the Court’s work; it seeks to restore a measure of order to the interpersonal relationships shattered by international crimes, by prosecuting those who through their actions have made the world hell for others. That, surely, is a common good, and part of what the American libertarian ideal is based upon. Extensive freedom must come with accountability for those who seek to unduly limit it for others in the most outrageous ways.
Perseverance
The United States’ attack is hence confined to a strangulation of the Court on the basis of what it symbolises. It appears to have become a pars pro toto for the absolute target of the United States: the international rules-based order. The same order which had previously served United States national interests to pioneer, but which has since evolved into a system powerful enough to hold its creator to an inconvenient standard of justice. It is a symbol for the achievements of the last century, where the United States was one of the primary accelerators of freedom and wellbeing in the Western hemisphere. The golden age of multilateralism is slowly, but surely, crumbling – and it is one of its youngest achievements, the ICC, which is being targeted most violently. The United States administration is investing significant time, resources and diplomatic leverage in the attempted extermination of an institution premised fundamentally on its own global principles.
The only way for the ICC and international criminal accountability to survive is for the institution to focus fiercely and as determined as never before on its core mission. The legal work, the prosecutorial work, the dogma of criminal accountability, the nitty-gritty of individual legal concepts derived from international humanitarian law – this is the real work of a Court. And that work is unchallengeably fact-based, independent, impartial. A lawyer’s training requires no political theory or political reasoning. It requires strict rule-of-law-based application of norms to facts. Such work is at its core unattackable. The day the Court abandons its excellence in legal output will mark the beginning of its demise, not a day before.
If it can be conveyed to Member States and members of the general public more broadly that the United States’ attacks on the Court are as superficial in reasoning as harrowing in practice, I believe it will regain the trust it so desperately needs. Going forward, the Court needs all the support it can get. Its legal work can only continue if its staff can concentrate on their work. The Court needs money to function, and the Member States can provide it.
If at the beginning of the 21st century the international community cannot agree on a shared commitment to morality in the face of the most heinous crimes which people inflict upon their peers, then it is a sinister outlook for the centuries to come. The United States is not only not agreeing, it is actively interfering with a system others have successfully built. Morality is not a lawyer’s concern, but it is among the reasons why law, and legal institutions, must exist. It is not one stake among others, not one which a politician may disregard because it seems opportune. It is not a merchandisable good, not a product subject to the market rules of capitalism. The dismantlement of common decency and accountability affects the core itself of humanity – when humanity crumbles, it crumbles within every human being, be they a victim of an international crime or not.
