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Revisited: What are the next steps in the US-ICC relationship?

Time for a Clean Slate: Re-envisioning the US – ICC relationship

by Dr. Priya Pillai

The last few years have been particularly tumultuous ones in the US–International Criminal Court (ICC) relationship. At the best of times, the relationship has been lukewarm, but watching it degenerate due to the hostility of the previous US administration has been alarming.

As a result of Executive Order 13928 issued by the Trump administration in June last year, sanctions were imposed against the ICC Prosecutor Fatou Bensouda and a senior prosecution official, Phakiso Mochochoko. The order was revoked by President Biden this April. However, the announcement by the current administration made clear the marked lack of enthusiasm for the work of the court, in its reiteration of strong disagreement with actions of the ICC in relation to Afghanistan and Palestine and longstanding objections regarding assertion of jurisdiction over non-States Parties, but also noting that it was encouraged by the “broad range of reforms” being considered for the court. These are indicators of the long-standing disagreements that the United States has with the work of the ICC, and which are not set to recede soon.

These have also been testing times for the ICC, independent of the US actions. The court has received sustained and often valid criticism on a range of issues—from case selection, to slow investigations and prosecutions, to an undue focus on Africa, low conviction rate of the Prosecutor to point out a few. As a result of these factors, the Assembly of States’ Parties (ASP) in 2019 approved the commission of an Independent Expert Review process, to address clusters of issues relating to governance, the judiciary, and investigations and prosecutions at the court. The final report and findings of this review were presented in September 2020. It is now a matter of the ASP and the Court taking on board the recommendations of the panel and prioritizing how and which of the recommendations will be implemented. Simultaneously, the election process for a new prosecutor concluded earlier this year, with the selected candidate—Karim Khan of the UK—set to start in the position in a few months. There have also been judicial elections, with six new judges on the bench. Overall, it seems this is potentially a new era in the life of the court, depending on the impact of these changes. 

At the time of writing, the two situations of particular ire for the United States—Afghanistan and Palestine—are escalating, with a terrible surge in conflict, death and destruction. This casts a pall on the prospects of a détente between the ICC and the United States. However, with changes in administration both in the United States and in the Court and areas of common concern persisting, it is necessary to reassess the relationship and in doing so, consider its broader impact on international rule of law and accountability. This is a call to action which places the onus on the United States. Idealistic maybe, but it is important to revisit some fundamentals in this complex arena.

Walk the talk: Rules-based global order 

Setting standards in relation to rule of law and a rules-based global order are a key advocacy point of US foreign policy. While disputed by many, if we are to believe this assertion, there needs to be leadership and follow-through. This necessitates a clear commitment to the aims of the ICC—targeting impunity and prosecuting international atrocity crimes. This should translate into support for the court, and more crucially, participation as a state party. A clear commitment also means jettisoning a fluid ‘case by case’ approach of previous administrations in its dealings with the court.

For a state that is not a party to the Rome Statute, it is fair to say that the United States has a disproportionate impact on policy surrounding the court and its workings. This also influences the manner in which other states approach the ICC. For instance, the Asia-Pacific region has amongst the lowest state ratifications of the Rome Statute— 19 at last count—with states taking their cue and echoing the U.S. position of exceptionalism. These include states such as Myanmar and the Philippines. Added to this, arguments about sovereignty and the neo-colonial reach of the court are essentially a way to evade the reach of the court, regardless of the commission of international atrocity crimes. This is also compounded by the fact that many states worldwide have signed bilateral agreements with the United States which attempt to ensure non-surrender of US personnel to the ICC.

Another point to emphasize here— obvious perhaps but worth restating—is that the Court is meant to be a last resort. Hence, if there is a clear and demonstrated willingness and ability to prosecute cases in domestic courts, the ICC has limited reach. Rather than deterring the ICC prosecutor from focusing on cases that may implicate US servicemembers or those of its allies, the current administration would be better placed to channel its energies to undertake thorough investigations and where warranted, to prosecute cases of international crimes domestically. In doing so and in fulfilling the requirements of complementarity per the Rome Statute, there should be no fear of the ICC prosecutor initiating cases in such a context. This is another reason and way the United States could choose to take a principled stance, and to actually demonstrate support for the aims of the Court.

UN Security Council: Institutionalized inaction

The U.S. track record relating to the ICC at the United Nations Security Council (UNSC)—linked to peacekeeping, or the referral and deferral of situations by the UNSC in keeping with the Rome Statute—has been disappointing. While there are broader dynamics at play, it is worth asking what the United States can do differently in its approach towards the ICC by virtue of its position as a permanent member of the council.

The power to refer and defer situations accorded to the Security Council in the Rome Statute per Articles 13 and 16 has been the source of much controversy, including the council’s power to refer situations of a non-state party. This may be viewed by some as the politicization of the court, allowing states that have not signed or ratified the statute—three of the five permanent members—to make decisions regarding the jurisdiction of the ICC over other non-state parties. There have only been two instances of referral (Darfur Resolution 1593, 2005 and Libya Resolution 1970, 2011) and an unsuccessful attempt at deferral (Kenya in 2013). It must be noted that the Darfur referral passed as a result of an abstention by the U.S., with changes to the resolution to accommodate its position. The changes included financial implications, with the resolution providing for voluntary contributions or the ASP funding the work of the court, rather than the UN as envisaged. In the case of Libya, the US administration played a more positive role. While laudable, this is still an insufficient use of political and diplomatic leadership. With unsuccessful attempts to refer Syria to the ICC, and the need for a complete referral for Myanmar (as distinct from the ongoing and more limited ICC investigation), there needs to be a greater sense of urgency and a concerted effort to ensure these referrals.

Apart from the relationship between the ICC and the UNSC provided for by the Rome Statute, a range of other matters linked to the work of the Court have run into trouble based on similar concerns. There has been opposition to including language referring to the ICC in peacekeeping missions. For instance, while Resolution 2423 for the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) included references to the ICC, it placed the onus of cooperation entirely on Mali. Other resolutions that have been diluted or that have omitted entirely the role of the court include those on children and armed conflict (Resolution 2427). These deletions and omissions are significant given the binding nature of UNSC resolutions, in particular as they relate to Chapter VII of the UN Charter.

The UN Security Council dynamics have resulted in a hamstrung council, ultimately impacting its ability to fulfil its mandate to solve international problems and maintain international peace and security. The often obstructionist approach of China and Russia must be criticized. However, so must the approach the US has taken in many instances to limit the ICC’s role pertaining to justice and accountability before the council. In re-envisioning its relationship with the ICC, the United States should carefully consider the impact that previous iterations have had on the global rules-based order and on crucial institutions like the United Nations. It is time for a more proactive and principled role moving forward.

Dr. Priya Pillai

Dr. Priya Pillai is an international lawyer and heads the Asia Justice Coalition secretariat, a network of organizations focused on justice and accountability in Asia. Dr. Pillai has worked at various national and international institutions, including the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Federation of Red Cross and Red Crescent Societies (IFRC) headquarters in Geneva. She holds a PhD in international law from the Graduate Institute, Geneva and is a contributing editor at the international law blog Opinio Juris. Dr. Pillai consults and advocates on various aspects of international law, and has most recently contributed to the work of the Independent Panel for Pandemic Preparedness and Response on treaty law.