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In the Spotlight: The Legitimacy of the International Criminal Court

By Caleb H Wheeler

Lecturer in Law at Middlesex University, London

 and author of the recently published book The Right to Be Present At Trial in International Criminal Law (Brill 2018)

c.h.wheeler@mdx.ac.uk

 

Recently, the International Criminal Court (‘ICC’ or ‘the Court’) has increasingly found itself in the political spotlight. On 10 September John Bolton, a United States National Security Adviser, attacked the Court as ‘illegitimate’ and claimed that ‘for all intents and purposes, the ICC is already dead.’ Donald Trump reinforced those contentions in his address to the United Nations General Assembly on 24 September when he asserted that ‘the ICC has no jurisdiction, no legitimacy and no authority.’ This blog post will examine the context of Bolton and Trump’s statements about the legitimacy of the International Criminal Court in an effort to determine whether they were challenging its legitimacy vis-à-vis the United States or if they meant to question its overall legitimacy. It finds that the Court’s overall legitimacy is not in question but that it is very limited in how it can exert jurisdiction over the United States.

 

There is some basis for the argument that the International Criminal Court lacks legitimacy with regard to the United States. As a treaty-based legal institution, the International Criminal Court is limited to exercising authority only in the territory of those states that have consented to such an exercise of power. The United States is not a state party to the International Criminal Court and as such the Court can only apply jurisdiction over its populace in two situations. The first is if an American citizen commits a crime on the territory of a state that is a party to the Statute. The second would arise following a Security Council referral to the Court of a situation occurring in the United States. However, as a permanent member, the United States can veto any Security Council decision, making it functionally impossible that there ever will be such a referral. Further, The United States has negotiated over 100 bilateral agreements in which states parties to the Rome Statute have agreed that they will not surrender Americans found on their territory to the International Criminal Court. While it is not strictly true that the International Criminal Court can never exercise jurisdiction over Americans accused of international crimes, it can only happen under a narrow set of circumstances.

 

The context of Trump and Bolton’s statements may also suggest that they were specifically challenging the International Criminal Court’s legitimacy to act in relation to the United States. Trump’s comments were prefaced by the qualifier, ‘[a]s far as America is concerned…’ This statement can be interpreted in two ways. It could mean that the Court has no jurisdiction, legitimacy or authority when it comes to Americans or acts that take place on the territory of the United States. It could also mean that the United States rejects the jurisdiction, legitimacy, and authority of the Court in toto.

 

Bolton’s comments seem to confirm that American criticism of the International Criminal Court is largely focused on its perceived interference with state sovereignty. Not surprisingly, his comments are primarily designed to protect American interests, but he also argues against any possible interference by the Court with Israel’s construction of settlements in the West Bank. He also threatens sanctions against the Court if it attempts to initiate proceedings against ‘us, Israel or other US allies.’ While Bolton clearly dislikes the International Criminal Court as a whole, he is particularly concerned with the possibility that it might exercise judicial authority over citizens of states not party to the Court Statute. This is made clear in his summation in which he states, ‘an international court so deeply divisive and so deeply flawed can have no legitimate claim to jurisdiction over the citizens of sovereign nations that have rejected its authority.’ Although the United States is not directly mentioned, it is apparent that the possibility that the Court might try to exert authority over the United States, and to a lesser extent Israel, is foremost in Bolton’s mind. Ultimately it should come as no real surprise that the United States would prioritize protecting its citizens over the interests of justice. The late Cherif Bassiouni predicted that the interests of states and Realpolitik would be the ‘principle obstacles to the effectiveness of the ICC.’

 

A much more complicated question is raised if Trump and Bolton meant to suggest that the International Criminal Court is generally illegitimate. Bolton, speaking on behalf of the president, challenges the overall legitimacy of the Court by attacking its ‘unfettered powers’ and for being structured in a way that he believes is ‘contrary to fundamental American principles’. A superficial reading of this statement leads to the conclusion that Bolton is asserting that the International Criminal Court lacks legitimacy only in relation to the United States. However, when placed in its larger context it becomes apparent that Bolton’s statement could have been meant to attack the legitimacy of the Court as a whole. In a journal article published in 2000, Bolton specifically stated that ‘the Court and the Prosecutor are illegitimate’ and he directly tied their lack of legitimacy to the way in which the Court is structured.[1]Bolton expresses particular concern with what he characterises as the prosecutor’s ‘potentially enormous, essentially unaccountable powers’ that give her the ability to exercise jurisdiction over citizens of states that are not party to the Rome Statute. He also believes that the Court’s decision not to implement a tripartite structure, with three equal and co-extensive branches, means that it lacks the necessary checks and balances to adequately protect the liberty of individuals. Bolton further claimed, both in 2000 and 2018, that the Court’s Statute is so deeply flawed as to be irreparable. It is reasonable to believe that the comments made in September 2018 are a continuation of the position he first set out in 2000, and thus to conclude that the perceived problems with the Court’s structure and Statute impair its overall legitimacy. As Bolton was speaking in his official capacity as a national security adviser, and his comments were partially echoed by President Trump, one could infer that the United States believes that the International Criminal Court suffers from a fundamental lack of legitimacy.

 

Only weeks before Bolton’s speech, a group of 132 parliamentarians from five Southeast Asian states released a joint statement in which it called on the United Nations Security Council to refer Myanmar to the International Criminal Court for human rights abuses allegedly committed against the Rohingya ethnic group. That was followed on 25 September, a group of six South and North American states formally referredVenezuela to the International Criminal Court for international crimes allegedly being committed there. This referral and proposed referral act to contradict the United States’ position on the legitimacy of the Court. This is demonstrated by the fact that both groups believe that the International Criminal Court is the appropriate venue at which to prosecute the perpetrators of the crimes alleged. The Court’s legitimacy was bolstered by Canada’s president, Justin Trudeau when he asserted, ‘[t]he International Criminal Court has our full support and confidence.’ The Southeast Asian parliamentarians also implicitly recognized the legitimacy of the Court when they directly linked referral to the Court as the best pathway to accountability for the alleged perpetrators. These actions and statements leave no doubt that those nations involved still believe in the Court’s legitimacy.

 

Most importantly, the inherent legitimacy of the International Criminal Court is demonstrated by the fact that there are 123 states parties to the Court. This constitutes 64 percent of all members of the United Nations. Those 123 nations confirm their belief in the Court’s legitimacy by accepting the jurisdiction of the Court within their territory and over their nationals. Interestingly, Bolton tries to downplay this source of legitimacy in his remarks by suggesting that because 70 nations are not member states, and because of the large population of some of those states, ‘most of the world’ has rejected the Court.

 

The Court itself confirmed its own legitimacy in its recent decision on its jurisdiction over the crime against humanity of deportation as alleged against the government of Myanmar. In that decision, Pre-Trial Chamber I found that the International Criminal Court possesses ‘objective international personality’ as a ‘legal-judicial-institutional entity’ that is separate and apart from the legitimacy conferred upon it by the recognition of its states parties. That legitimacy is evidenced by the Court’s engagement and cooperation with both states parties and non-states parties alike. The United States is included amongst the non-states parties that have engaged and cooperated with the Court by virtue of its status as an observer state to the Assembly of States Parties of the International Criminal Court. In fact, at the most recent Assembly of States Parties the United States implicitly acknowledged the Court’s legitimacy when it identified the important role the International Criminal Court can play in ensuring that justice is delivered to the victims of international crimes.

 

The overall legitimacy of the International Criminal Court is not in doubt. Numerous international actors, including the government of the United States, have reconfirmed its legitimacy. Therefore, the comments made by Bolton and Trump must be viewed as a repudiation of the International Criminal Court’s ability to exercise jurisdiction over citizens of the United States. That being said, simply because the Court cannot exercise jurisdiction over Americans does not also mean it is illegitimate as far as the United States is concerned. What Bolton and Trump are really expressing is their disapproval with the manner in which the Court operates and their concern that it might exercise jurisdiction over American citizens in one of the small areas still open to it. In the end, these comments are really nothing more than rhetoric designed to achieve the political objective of undermining the Court at the expense of justice.

 

[1]John R Bolton, ‘The Risks And Weaknesses Of The International Criminal Court From America’s Perspective’ (2000) 64(1) Law and Contemporary Problems 167, 169blog

Photos courtesy: Spencer Platt/Getty Images: Andrew Harnik/AP Photo: The International Criminal Court

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Trump’s Travel Bans and Extreme Vetting: How They Violate Basic Human Rights

Caleb Wheeler, PhD Student in International Law, Middlesex University, London

One of Donald Trump’s first actions as president of the United States was to issue an Executive Order banning the citizens of seven Muslim majority countries, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a period of 90 days. He justified the ban on the grounds that it would be detrimental to the United States if citizens of those states were permitted to enter the country while a review was being conducted of the existing screening and vetting procedures utilized to determine whether a person should be issued an entry visa. The implementation of the ban was halted by the issuance of temporary restraining orders by multiple federal district courts, and on 9 February, the Ninth Circuit Court of Appeals refused to stay enforcement of those temporary restraining orders. Unperturbed, President Trump issued a second executive order on 6 March in which he sought to ban citizens from six of the seven countries identified in the first ban (having removed Iraq from the original list) from entering the United States. That executive order was also challenged in Court, and federal district courts in Hawai’i and Maryland again prevented its implementation through the issuance of restraining orders. While much of the attention given to the travel bans focuses on the discriminatory effects they have on Muslims from certain countries, considerably less consideration has been given to the types of screening and vetting procedures the administration wishes to impose and the potential effects these new measures would have on the rights of all travelers to the United States. This blog post will demonstrate that policies requiring foreign travelers to reveal private electronic data are impermissible under United States’ domestic law and international law and should be avoided.

 

Both bans are titled ‘Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States’ and have the stated purpose of improving “the screening and vetting protocols and procedures associated with the visa-issuance process”. The goal of these improvements is to identify those individuals seeking to fraudulently enter the United States, and those that support terrorism, violent extremism, acts of violence towards any group of people within the United States or who prevent a risk of causing harm following entry. A number of specific techniques have been suggested to promote the proper identification of individuals falling into these categories, including: in-person interviews, the creation of a database of identity documents and amending application forms so as to better identify fraudulent answers. More general methods have also been proposed involving the development of mechanisms to determine whether applicants are not misrepresenting their identities, whether they may commit, aid or support violent terrorist acts after entering the United States and a catch-all category permitting the government to use “any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility”.

 

It is these latter, more general, categories that cause consternation, particularly in light of recent media reports suggesting that the new screening and vetting requirements could require foreign visitors to reveal their mobile phone contacts, social media passwords and financial data before gaining entry to the country. According to a senior Department of Homeland Security official, the goal of collecting mobile phone contact information is to learn the identities of those individuals who potential visitors are communicating with. Additionally, the secretary of the Department of Homeland Security previously stated that the purpose of demanding that people reveal their passwords is to allow the United States government to “see what they do on the internet.”

 

These proposals raise significant national and international right to privacy concerns. Domestically, the Fourth Amendment of the United States Constitution prohibits the unreasonable search and seizure of a person’s property and requires that search warrants be supported by probable cause. In 2014, the United States Supreme Court held in Riley v California that the police need a warrant to search the information contained on a mobile phone confiscated during a lawful arrest. That decision was based on a finding that mobile phone owners have a privacy interest in the data contained therein that can only be intruded upon through a valid warrant. Recently introduced bills in the Senate and House of Representatives seek to extend the warrant requirement set out in Riley v. California to searches of “electronic equipment and online accounts” occurring at the United States’ borders. The bills specifically state that there is a reasonable expectation of privacy about a persons’ digital content of their electronic information and online accounts and that it is unreasonable under the Fourth Amendment to permit border agents to access electronic equipment without a warrant. The bills do explicitly limit that right to privacy to “United States Persons” as described in 50 U.S. Code § 1801, a designation which encompasses citizens of the United States, lawful aliens with permanent residence and corporations incorporated in the United States. Despite this limitation, the general proposition remains that the right to privacy limits access to information contained on mobile devices. Further, the Fourteenth Amendment of the Constitution entitles non-citizens to equal protection under the law and the Supreme Court has specifically granted non-citizens the right to challenge government actions infringing on rights delineated in the Constitution. Therefore, any measures requiring individuals to produce that information would be unlawful.

 

International law also invalidates any argument that the right to privacy only extends to American citizens and other lawful residents. Article 17 of the International Covenant on Civil and Political Rights (ICCPR, or ‘the Covenant’), which the United States ratified in 1992, explicitly forbids the arbitrary or unlawful interference with an individual’s privacy. When delineating what sort of information States Parties must put in their reports to the Human Rights Committee, interference was described as unlawful when it does not comply with the laws of the State seeking to interfere with an individual’s privacy, and it is arbitrary when it does comply with the State’s laws, but where those laws are not in accord with the provisions, aims and objectives of the Covenant. The Committee goes on to find that interference with the right to privacy must be reasonable under the particular circumstances and should only be authorised to the extent that it is essential to the interests of society that such information is disclosed. This is a high bar to clear, and requires a case-by-case inquiry into each situation. Therefore, even if it could be shown that the information sought is essential to the interests of the United States, that it is reasonable to infringe on the right to privacy and that the right to privacy as it is understood in the United States does not prevent access to the information, a blanket demand that all foreign visitors provide contact, password and financial information will fail as it will not comply with the required fact specific inquiry.

 

In a 2013 resolution, the General Assembly of the United Nations clarified the parameters of the right to privacy as it pertains to digital information. The General Assembly specifically indicated that it was “deeply concerned” about the collection of personal data and its impact on the exercise and enjoyment of civil rights and emphasised that the unlawful or arbitrary collection of personal information is a highly intrusive act that violates the right to privacy. It called upon all states to respect the right to privacy and to establish measures meant to implement their human rights obligations. Although non-binding, this resolution indicates a rejection by the world community of the sort of measures the Trump administration hopes to impose. The General Assembly resolution also requested that the United Nations Commissioner for Human Rights submit a report addressing the right to privacy in the digital age. Although the resulting report primarily focused on information accumulated through mass surveillance programmes, it did clarify that, in addition to the requirements set out by the Human Rights Committee, any limitation on the right to privacy has to comply with other human rights and must not render the right meaningless. Limitations failing to meet these criteria are considered unlawful and/or arbitrary.

 

Therefore, it is important to examine whether limitations to the right to privacy also impact other human rights. In this instance, the proposed new screening and vetting requirements could act as an infringement on the First Amendment right to free speech. The First Amendment prevents the government from abridging the freedom of speech and allows people to make political statements critical of the government without fear of punishment, unless such statements are meant to incite imminent lawless action or constitute a legitimate threat to the president’s life. Knowing that their private statements could be subject to scrutiny by the United States’ government, and possibly act as a barrier to their entry into the country, could prevent individuals from speaking freely out of fear of the possible repercussions. This is particularly true where, as here, a person can enter the United States is left to the discretion of an individual Customs and Border Protection officer, and entry can be denied even if the traveler possesses a valid visa.

 

The ICCPR also forbids the infringement of free speech, although it characterizes it as two rights: the freedom of expression and the freedom of opinion. The freedom of opinion, as set out in Article 19, is not subject to any exception or restriction, meaning the government is not permitted to infringe upon it in any way. By comparison, the freedom of expression, which includes any type of dissemination of ideas, can be limited for national security reasons. Therefore, the proposed screening and vetting cannot limit a person’s ability to hold an opinion but they can limit whether the person can express that opinion. However, the standard for implementing such a restriction is high and they will only be found lawful if they are necessary to protect national security and are not overbroad so as to exceed their protective function.

 

Screening and vetting procedures that require foreign visitors to disclose private digital information raise First Amendment and Fourth Amendment concerns and are of dubious constitutionality. Further, even if these significant Constitutional issues can be overcome, such measures are also impermissible under international law. That is unlikely to act as much of a impediment on President Trump’s attempts to implement these procedures as he has demonstrated hostility towards international human rights law during his presidency. The best hope to avoid this proposed widespread violation of the Constitution is for the Federal Courts to continue to play their important role in upholding the rights of individuals.

*Picture courtesy of usa.gov

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