On September 2, 2020, US Foreign Minister Mike Pompeo announced United States sanctions on ICC officials and its prosecutor Ms. Fatou Bensouda. Based on this sanction, their possible assets in the US will be frozen, and access to the American financial system is barred. The reason for this sanction is because the ICC continues to target Americans. According to his press conference statement, any individual or entity that continues to assist these individuals materially is also subject to sanctions.
President Trump is already engaged in an unprecedented offensive against the ICC. In June 2020, he authorized economic sanctions against officials of the ICC to dissuade the jurisdiction from prosecuting the American military for their involvement in the conflict in Afghanistan.
Under US Executive Order 13928 on June 11, 2020, the US President has authorized economic sanctions against officials of the International Criminal Court. They would take part directly in investigating or indicting US military personnel without the consent of the United States.
On the other hand, the ICC condemned the sanctions imposed by the US and announced that these measures are an attempt to interfere with the court’s judicial and prosecutorial independence and crucial work to address grave crimes of concern to the international community as mandated under the ICC Rome Statute. According to the ICC, these coercive acts, directed at an international judicial institution and its civil servants, are unprecedented and constitute severe attacks against the court, the Rome Statute system of international criminal justice, and the rule of law more generally.
President Trump’s administration’s foreign policy just two months before the presidential election is questioning the place of an international institution in international law.
The US is not a member state of the Rome Statute of 1998. It opposes the jurisdiction of the ICC to investigate and prosecute nationals of non-member states in the absence of referral to court by the UN Security Council. However, Afghanistan is a member state of the ICC, which gives the court the authority to investigate and prosecute crimes committed on Afghan territory – regardless of the nationality of the perpetrators.
Some questions and issues remain unresolved regarding President Trump’s administration’s policy toward the ICC.
First of all, the main issue is whether the sanctions against an international institution that is created and operated by more than a hundred member states could be according to the principle of international law. In other words, the legal question is the legality of sanctions against the ICC under international law. The sanctions against the ICC are undermining the effectiveness of its place and role in international criminal justice. This view toward the ICC also makes it more difficult to enforce international criminal law prohibiting genocide, war crimes, and crimes against humanity.
Second, in recent years unilateral sanctions have become an important part of Trump’s administration’s foreign policy. The new sanctions against the ICC are derived from the above-mentioned policy which is a unilateralist approach of Trump’s administration in international relations. Accordingly, this administration interprets international law in a manner that is not accurate in the multilateral world.
It is critical to note that such unilateral action could be a breach of the erga omnes obligations of states, a non-respect for principles of international humanitarian law, a violation of international cooperation, and discouragement of global criminal justice.
Moreover, the unilateral sanctions and extraterritorial implementation of national policy violate the international law’s principles such as respect and dignity of national sovereignty, equality of States, nonintervention in the internal affairs of the State, and international organization.
Thirdly, the US policy regarding the ICC depends directly on the Republicans and Democrats parties’ approaches. Democrats are generally in favor of the development of international criminal justice and the role of the ICC in this regard. Still, Republicans have consistently opposed the ICC and even recently sought to sanction the ICC. In this context, the question is whether the outcome of the upcoming US presidential election could be crucial for the officials of the ICC.
Finally, the basic principles and purposes of the United Nations, as listed in the Charter, are international cooperation, equality between states, development of justice and international law, respect for human rights, and peaceful conflict resolution. Article 1 (2) of the Charter states that one of the primary purposes of the UN is to develop friendly international relations based on respect for the “principle of equal rights and self-determination of peoples.” In addition, Article 2 (5) obliges all member states to assist the UN. Therefore, helping the UN and international institutions for enforcement and implementation of international law is the foundation of international law. From this perspective, unilateral measures such as political and economic sanctions against international actors are not acceptable under contemporary international law.
Dr. Abbas Poorhashemi is an expert in international law. He is the President of the Canadian Institute for International Law Expertise (CIFILE). His teaching and research interests are in the areas of Public International Law, International Criminal Law, and International Environmental Law. He has published many books and articles in each of these areas. He is also the Editor-in-Chief of the CIFILE Journal of International Law (CJIL), Canada.
Suggested citation: Dr. Abbas Poorhashemi, US Sanctions Against the International Criminal Court: Where is International Law Going?, JURIST – Professional Commentary, September 15, 2020, https://www.jurist.org/commentary/2020/09/abbas-poorhashemi-sanctions-icc-international-law/.
