{"id":140459,"date":"2025-01-20T10:37:08","date_gmt":"2025-01-20T09:37:08","guid":{"rendered":"https:\/\/www.justiceinfo.net\/?p=140459"},"modified":"2025-04-01T15:38:42","modified_gmt":"2025-04-01T13:38:42","slug":"can-the-icc-survive-the-u-s-sanctions-part-1","status":"publish","type":"post","link":"https:\/\/www.justiceinfo.net\/en\/140459-can-the-icc-survive-the-u-s-sanctions-part-1.html","title":{"rendered":"Can the ICC survive the U.S. sanctions? (Part 1)"},"content":{"rendered":"\n

Earlier this month, the U.S. House of Representatives passed a bill calling on the U.S. president to sanction the International Criminal Court (ICC)<\/a> for any investigations into \u201cprotected persons\u201d of the United States and its allies. The president of the ICC warned it may jeopardize the existence of the Court. Before analysing why the new U.S. sanctions may be fatal, we look back into the history of the yo-yo relationship between the U.S. and the ICC.<\/strong><\/p>\n\n\n\n\n\n\n\n

Todd Buchwald, the U.S. ambassador-at-large for global criminal justice<\/a> from 2015 to 2017, describes the new potential sanctions for the International Criminal Court (ICC) as \u201cdraconian\u201d and compares them to those \u201cthe U.S. government uses against persons who pose grave national security threats, like al Qaeda members and other terrorists\u201d: \u201cThey are designed to cut off any possible avenue for such persons to receive funds or other support.\u201d<\/p>\n\n\n\n

The court\u2019s president Tomoko Akane in her statement to the ICC\u2019s annual meeting<\/a> last December used the same terms: \u201cThe Court is being threatened with draconian economic sanctions (\u2026) as if it was a terrorist organisation,\u201d she said. \u201cThese measures would rapidly undermine the Court\u2019s operations in all situations and cases and jeopardise its very existence\u201d.<\/p>\n\n\n\n

The Congressional sanctions on the ICC are now with the U.S. Senate, but as President Donald Trump<\/a> is inaugurated, his new administration may implement sanctions whether mandated by lawmakers or not. This call for sanctions happens as for the first time, the Court has issued arrest warrants against a U.S. ally, the leadership of Israel<\/a>. Exactly what form these sanctions will take, whether they will encompass the whole institution or just individuals, is still unknown and will be up to President Trump.\u00a0<\/p>\n\n\n\n

The 2002 Hague Invasion Act<\/h2>\n\n\n\n

The U.S. has a long history of rejecting the Court\u2019s jurisdiction, especially whenever the Republicans have been in power. Back in 2002 just as the court came into being, the U.S. Congress passed the American Service Members Protection Act (ASPA), known as The Hague Invasion Act, to protect its servicemen and women from investigation. <\/p>\n\n\n\n

But those restrictions \u201cturned out to be largely navigable, at least as a legal matter,\u201d notes Buchwald. \u201cThe international community has come to live with the ASPA, and it has not precluded the United States from being supportive of most of the Court\u2019s activities. Indeed, Court officials have appreciated that support.\u201d  <\/p>\n\n\n\n

For Buchwald, the current approach is of a different order: \u201cIt\u2019s true that the ASPA contained a provision authorising the use of force which received a lot of attention. But in the real world, it served basically as a political expression of disapproval and there was never a serious issue about using that authority to invade the Hague.\u201d \u201cThis is different. This is not meant to be lived with. This is meant to destroy the Court unless it changes course,\u201d he says. This legislation \u201cis really a frontal assault to try to squeeze the life out of the court unless it changes course, whereas the ASPA was more aimed at restricting the ability of the U.S. government to provide support to it.\u201d<\/p>\n\n\n\n

Harold Koh, who was the legal advisor at the State Department under Obama and held a senior position in the Clinton administration, recalls that when the Bush administration pushed for enactment of the ASPA in 2002, then-Senator Chris Dodd \u201chad inserted in it the Osama bin Laden exception, which allowed the U.S. to support pursuing someone like Osama bin Laden\u201d. It was that \u201cexception\u201d, says Koh, that was used to support the ICC at the beginning of the Biden administration. <\/p>\n\n\n\n

Yo-yo relationship<\/h2>\n\n\n\n

The analogies used to describe the U.S. relationship with the ICC all recognise how up and down it has been, especially according to which party has run the administration. \u201cI think it\u2019s fair to say that the Biden administration has been the most supportive of the ICC of any of the U.S. administrations. And so that\u2019s a high watermark. And we\u2019re now going back down to a low watermark,\u201d Koh says.<\/p>\n\n\n\n

For Kip Hale, the founding director of the American Bar Association\u2019s ICC Project that focused on U.S.-ICC relations through public and private means, the relationship is \u201cmore as a pendulum swinging,\u201d \u201ctwo steps forward, two steps back,\u201d and that Is also due to a lack of knowledge about the ICC. \u201cI can\u2019t tell you how many meetings I\u2019ve had on Capitol Hill where both Republican and Democrat staffers are just operating on the premise that there\u2019s some sort of bipartisan consensus that \u2018the ICC is bad\u2019. And they don\u2019t even know why. If you would ask them, they have no idea. They just take it as gospel.\u201d <\/p>\n\n\n\n

\u201cI think it\u2019s more of a yo-yo,\u201d says Milena Sterio, professor of Law at Cleveland State University. \u201cWhen you look at the U.S. relationship with the Court starting back in 1998, things have gone back and forth with different presidential administrations, with basically the Democrat administrations being a lot more supportive of the Court,\u201d she says, adding : \u201cWe\u2019ve seen that under the Biden administration, which was willing to support the court on the Ukraine investigation, for example. The Obama administration similarly was supportive of the court in limited ways. And then, we\u2019ve seen, for example, the Bush administration very hostile to the court, negotiating these bilateral agreements with other countries left and right to make sure that they wouldn\u2019t extradite anybody to the court. And then the peak of the hostility obviously is with the Trump administration.\u201d<\/p>\n\n\n\n

For Adam Keith, senior director for accountability at Human Rights First, an NGO, and former senior policy advisor at the State Department, \u201cthis also just highlights more than ever the importance of the court not becoming dependent on or limited to U.S. support because of how unreliable, and in the best case off and on fickle it is. This is obviously more than just turning off support. It\u2019s going to go into a sort of economic war with the court, which is what\u2019s so horrifying about it.\u201d<\/p>\n\n\n\n

The reasons of the Trump administration\u2019s ire<\/h2>\n\n\n\n

It was in 2020, under a previous ICC prosecutor that the Court attracted the ire of Donald Trump\u2019s administration. Fatou Bensouda<\/a> had not yet officially opened the investigation into Palestine, but had asked the Court to go ahead with an investigation into Afghanistan<\/a>, including alleged crimes by U.S. forces, such as \u201cacts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence\u201d committed in that country 2003 and 2004, and later in CIA black sites in Poland, Romania and Lithuania. The sanctions themselves \u2013 as opposed to other more diplomatic measures to protest against the Court\u2019s actions \u2013 came as a surprise to most observers. \u201cBecause it hadn\u2019t been done before, we were all taken aback and all surprised,\u201d says Sterio, \u201cbecause imposing sanctions against an international institution or against an international institution\u2019s high-level official is so unprecedented.\u201d <\/p>\n\n\n\n

In an interview<\/a>, Bensouda said it was clear that \u201cto a very large extent, it was these two cases, Afghanistan and Palestine, that probably led to the sanctions,\u201d although she argues that she was able to justify that she \u201cwas not overreaching,\u201d but \u201cacting within the legal framework\u201d. She says she \u201chad the evidence to move forward with this\u201d but \u201cit landed me in trouble\u201d.<\/p>\n\n\n\n

\u201cJohn Bolton [Trump\u2019s former national security adviser] certainly had made threats against the Court and called it an illegitimate institution,\u201d Sterio recalls, \u201cbut I personally did not expect that sanctions would be imposed because up until that point, sanctions had been used against individuals like El Chapo, narco-terrorists or traffickers, and against individuals associated with Al Qaeda.\u201d<\/p>\n\n\n\n

Sanctioning ICC officials from small African countries<\/h2>\n\n\n\n

In 2020, two individuals, both from small African states, were singled out for the sanctions. The Court\u2019s prosecutor Bensouda is Gambian and Phakiso Mochochoko, a long-serving Court official and head of the jurisdiction, complementarity and cooperation division of the Office of the prosecutor, is from Lesotho. <\/p>\n\n\n\n

Looking back, Keith notes the singling out of people from \u2018weaker\u2019 states. For example, the then Canadian deputy prosecutor to Bensouda \u201cwho was presumably in the chain of command in the \u2018offending\u2019 investigation, didn\u2019t end up on the sanctions list\u201d. That gap indicates the lobbying behind the scenes from U.S. allies to protect their citizens. In 2020 the \u201cclose allies\u2019 filter,\u201d as Keith calls it, \u201cwas seemingly in effect, where the people who ended up coming out on the sanctions list were the ones from countries whose governments probably didn\u2019t have much clout or ability to push back on the U.S.\u201d. And in the end, \u201cyou end up only with a couple of black African ICC officials. And that\u2019s appalling in its own specific way,\u201d says Keith. <\/p>\n\n\n\n

The effects on the individuals sanctioned in 2020 were severe. A source close to Bensouda who prefers to stay anonymous described how the then-ICC prosecutor could not withdraw money from a cash machine. \u201cWe know from 2020, when the ICC prosecutor and one of her deputies were on the sanctions list, that it was a challenge for them to keep their business services and vendors continuing to engage with them,\u201d says Keith. He says that the details of how they managed to keep going during the 8-months of sanctions are not publicly known: \u201cA lot of the responsibility falls on the Dutch government as the host country of the court.\u201d<\/p>\n\n\n\n

Bensouda said that she had repeatedly told the Assembly of States Parties, different states, and NGOs, that \u201ca red line has been crossed and it should not be allowed to stay this way because it\u2019s the prosecutor, it is the Office of the prosecutor that has been sanctioned. And this is totally wrong\u201d. <\/p>\n\n\n\n

The sanctions challenged in U.S. courts<\/h2>\n\n\n\n

Sterio is one of a small group who challenged the order in 2020 through a federal court. \u201cAll of us generally believed that imposing sanctions against the ICC is not just ridiculous, but threatens this entire world of international criminal justice, because it inhibits the Court\u2019s ability to function freely,\u201d she says. \u201cIt improperly tries to influence the Court into dropping certain investigations. And instead of the United States positioning itself as a leader in international criminal justice, it actually puts the U.S. at the opposite end of the spectrum, where we\u2019re really doing everything to inhibit the court.\u201d<\/p>\n\n\n\n

She explains she had \u201cdual motives: a selfish one, and then a more altruistic one\u201d. The way that the sanctions\u2019 regime was structured that time, was that dual nationals \u2013 even though U.S. citizens \u2013 could potentially be the target of sanctions. \u201cThere are so many different ways in which academics like me who focus on international criminal law would be exposed. So the selfish reason was that I knew I was exposing myself to sanctions.\u201d But she was also challenging the principle. Together with other dual national academics and the Open Society Justice Initiative, an American NGO, she challenged the president\u2019s Executive Order as \u201cunconstitutional based on First Amendment grounds because it inhibited our ability to engage in free speech\u201d. She says that approach was also a strategical calculation: \u201cThe First Amendment argument was the best one to bring in U.S. federal courts because our judges are very sensitive to those types of constitutional arguments. They don\u2019t necessarily care as much about the ICC, but they do care about free speech.\u201d <\/p>\n\n\n\n

Such challenges, says Keith, are \u201csometimes only workable at the margins\u201d of a policy decision. \u201cThey weren\u2019t able to challenge the foundation of the sanctions programmes or to say, 'hey, you can\u2019t put Fatou Bensouda on the sanctions list\u2019,\u201d he says, because \u201cthere is a lot of deference to the executive branch by the courts when national security statutes are involved\u201d and the authority of the president is \u201cextremely broad, flexible, and expansive\u201d.<\/p>\n\n\n\n

Nevertheless, Sterio believes they achieved an important victory of principle when they got a preliminary injunction against the sanctions. \u201cThe standard for granting the preliminary injunction here in the United States is that you have to show a likelihood of victory on the merits and you have to show a risk of irreparable harm. So that was already a large preliminary victory, because the judge agreed with us that we were likely to win on the merits and that we were exposing ourselves to this risk of irreparable harm.\u201d<\/p>\n\n\n\n

Biden lifts the sanctions<\/h2>\n\n\n\n

But the case was overtaken by political events. President Biden was elected in November 2020, and was inaugurated in January 2021. Koh recalls how the Biden administration started with the Trump executive order \u201changing over its head\u201d and \u201chow hard they worked to lift it\u201d. \u201cI was in the administration at the time. We all worked on it and it wasn\u2019t as easy a job to get it lifted as you might have thought. There were different people, particularly from the Defence Department who were pushing to keep it in place as a way of warning the court against pursuing American soldiers in Afghanistan. But they ended up not doing that. And so that objection evaporated.\u201d<\/p>\n\n\n\n

\u201cWe were hoping that the sanctions would be overturned on day one of Biden in office,\u201d recalls Sterio. However, they remained in place and it wasn\u2019t until April that they were overturned. But she believes the legal challenge played a role: \u201cThe government\u2019s substantive deadline to provide an answer on the merits to our complaint was due on a Monday and the sanctions regime was overturned on Friday. And I do not believe that that was a coincidence. I don\u2019t think that they wanted to be on record defending the sanctions.\u201d<\/p>\n\n\n\n

\n\n\n\n

The second part of this article, which details the potential consequences of these sanctions and their conditions of application, is available here<\/a>.<\/p>\n\n\n

\r\n\t\t\t\t\t\r\n\t\t\t
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Earlier this month, the U.S. House of Representatives passed a bill calling on the U.S. president to sanction the International Criminal Court (ICC) for any investigations into \u201cprotected persons\u201d of the United States and its allies. The president of the ICC warned it may jeopardize the existence of the Court. Before analysing why the new […]<\/p>\n","protected":false},"author":79,"featured_media":140449,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[562],"tags":[4202],"ji_location":[2539],"class_list":["post-140459","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-icc","tag-donald-trump-en","ji_location-united-states"],"acf":[],"yoast_head":"\nCan the ICC survive the U.S. sanctions? 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(Part 1)","datePublished":"2025-01-20T09:37:08+00:00","dateModified":"2025-04-01T13:38:42+00:00","mainEntityOfPage":{"@id":"https:\/\/www.justiceinfo.net\/en\/140459-can-the-icc-survive-the-u-s-sanctions-part-1.html"},"wordCount":2354,"publisher":{"@id":"https:\/\/www.justiceinfo.net\/en\/#organization"},"image":{"@id":"https:\/\/www.justiceinfo.net\/en\/140459-can-the-icc-survive-the-u-s-sanctions-part-1.html#primaryimage"},"thumbnailUrl":"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/USA_Donald-Trump-raises-his-fist-front_@Charly-Triballeau-AFP.jpg","keywords":["Donald Trump"],"articleSection":["ICC"],"inLanguage":"en-US"},{"@type":"WebPage","@id":"https:\/\/www.justiceinfo.net\/en\/140459-can-the-icc-survive-the-u-s-sanctions-part-1.html","url":"https:\/\/www.justiceinfo.net\/en\/140459-can-the-icc-survive-the-u-s-sanctions-part-1.html","name":"Can the ICC survive the U.S. sanctions? (Part 1)","isPartOf":{"@id":"https:\/\/www.justiceinfo.net\/en\/#website"},"primaryImageOfPage":{"@id":"https:\/\/www.justiceinfo.net\/en\/140459-can-the-icc-survive-the-u-s-sanctions-part-1.html#primaryimage"},"image":{"@id":"https:\/\/www.justiceinfo.net\/en\/140459-can-the-icc-survive-the-u-s-sanctions-part-1.html#primaryimage"},"thumbnailUrl":"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/USA_Donald-Trump-raises-his-fist-front_@Charly-Triballeau-AFP.jpg","datePublished":"2025-01-20T09:37:08+00:00","dateModified":"2025-04-01T13:38:42+00:00","description":"When Donald Trump returns to the presidency of the United States, will he sanction the International Criminal Court (ICC) for any investigations into \u201cprotected persons\u201d of the United States and its allies. We look back into the history of the yo-yo relationship between the U.S. and the ICC.","breadcrumb":{"@id":"https:\/\/www.justiceinfo.net\/en\/140459-can-the-icc-survive-the-u-s-sanctions-part-1.html#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.justiceinfo.net\/en\/140459-can-the-icc-survive-the-u-s-sanctions-part-1.html"]}]},{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.justiceinfo.net\/en\/140459-can-the-icc-survive-the-u-s-sanctions-part-1.html#primaryimage","url":"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/USA_Donald-Trump-raises-his-fist-front_@Charly-Triballeau-AFP.jpg","contentUrl":"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/USA_Donald-Trump-raises-his-fist-front_@Charly-Triballeau-AFP.jpg","width":1200,"height":800,"caption":"Donald Trump becomes President of the United States again, this January 20, 2025. Even before the Senate passes a bill calling for tough sanctions against the International Criminal Court, Trump could issue a presidential decree specifying the extent to which he intends to undermine the Court's existence. Photo: \u00a9 Charly Triballeau \/ AFP"},{"@type":"BreadcrumbList","@id":"https:\/\/www.justiceinfo.net\/en\/140459-can-the-icc-survive-the-u-s-sanctions-part-1.html#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.justiceinfo.net\/en"},{"@type":"ListItem","position":2,"name":"Can the ICC survive the U.S. sanctions? 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