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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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The US and Information and Telecommunications in the Context of International Security: Which implications for the ius ad bellum?

INTRODUCTION

The issue of information security has been the subject of study of the First Committee of the UN General Assembly since 1998. This study originated in a proposal submitted to the General Assembly by the Russian Federation , which later became the consensus Resolution 53/70, inviting all States to inform the Secretary-General of their views about, inter alia, the ‘[a]dvisability of developing international principles that would enhance the security of global information and telecommunications systems and help to combat information terrorism and criminality’.[1] Since then, four Groups of Governmental Experts (GGEs) have been established and submitted the result of their work to the UN Secretary General, who is asked to report to the General Assembly. A fifth group has been established in December 2015, being expected to meet for the first time in August 2016 and submit its report in 2017.

In October 2014 the US submitted before the fourth GEEs a position paper, which was not, however, completely embraced by the other experts in their 2015 final report. This paper is in any case relevant as it is possible to derive from it important conclusions regarding the US opinio iuris on some aspects of the ius ad bellum, in particular the law of self-defence. This post aims at highlighting such implications and is structured as follows. First, I will analyse the issue of Information and Telecommunications in the Context of International Security as it has been dealt with within the UN; then, I will focus on the US position paper. I will conclude that, when it comes to the notion of ‘armed attack,’ the US Administration might have a broader understanding than the international community as a whole, to such an extent as to include any violation of article 2(4) UN Charter.

 

Information and Telecommunications in the Context of International Security at the UN

In line with its predecessors’ mandate, the fifth GGEs is supposed ‘to continue to study, with a view to promoting common understandings, existing and potential threats in the sphere of information security and possible cooperative measures to address them and how international law applies to the use of information and communications technologies by States’.[2] Since both the 2013 and 2015 reports consistently affirmed that international law, in particular the UN Charter, is applicable to the cyber-sphere, and that the latter applies ‘in its entirety’,[3] it is unclear why it could still remain to be seen how the Charter would apply. In fact, the UN Charter and all relevant UN instruments should provide sufficient guidance in this respect.

The reasons behind this uncertainty seems to be connected with a political tension within the GEEs. Russia, China, Pakistan, Malaysia and Belarus have in fact strongly opposed the US proposal of making an express reference to article 51 UN Charter, namely, the provision regulating states’ inherent right to use force on the grounds of self-defence to repel or prevent an actual or imminent attack.[4] They argued that the acceptance of this proposal would permit the US to affirm its supremacy in the cyberspace, which would then become another militarized area.

The report finally adopted does not mention article 51 UN Charter, but identifies

‘as of central importance the commitments of States to the following principles of the Charter and other international law: sovereign equality; the settlement of international disputes by peaceful means in such a manner that international peace and security and justice are not endangered; refraining in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations; respect for human rights and fundamental freedoms; and non-intervention in the internal affairs of other States.’[5]

Moreover, while recognizing the need for further study in this respect, the report notes ‘the inherent right of States to take measures consistent with international law and as recognized in the Charter.’ [6] The reference here is clearly to the right to use force in self-defence, without explicitly mentioning it.

The US and the notion of armed attack

Leaving aside any consideration with regard to what the next GGEs could further establish, what is interesting here is the US legal position on the matter. Indeed, it might help clarifying the Administration’s stand on some aspects of the ius ad bellum as they are provided by the UN Charter, the corresponding norms of customary law, and all other relevant instruments adopted within the UN, including the UN GA Res 3314 (1974).

This Resolution, adopted by consensus by the General Assembly in 1974, provided a definition of aggression, which -at least in some of its parts- has been considered reflective of customary law by the International Court of Justice.[7] Its article 3 also provides a non-exhaustive list of acts that constitute aggression. At the 2010 Kampala Review Conference, States Parties to the International Criminal Court adopted a consensus definition of the crime of aggression which makes an explicit reference to the Resolution and incorporates its article 3. The US has since then kept consistently opposing the Kampala amendment for a number of reasons, including its reference to Resolution 3314.

While not all acts of aggression would also constitute an ‘armed attack’ within the meaning of article 51 of UN Charter, the latter is no doubt both an act of aggression and a serious violation of article 2(4) UN Charter, which requires states to refrain ‘in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations’.[8] The force to which the provision makes reference has been originally conceived so as to encompass only military episodes.[9]

The US position paper submitted in 2014 broadens the range of situations in which a state may legally resort to force in self-defence. First, the paper expands the definition of armed attack, and therefore indirectly enlarged the list of acts of aggression, by including some cyber activities. In particular,

‘States should consider the nature and extent of injury or death to persons and the destruction of, or damage to, property. Although this is necessarily a case-by-case, fact-specific inquiry, cyber activities that proximately result in death, injury, or significant destruction, or represent an imminent threat thereof, would likely be viewed as a use of force / armed attack.’[10]

Such a ‘threat of an imminent armed attack in or through cyberspace is not [always] associated with a corresponding threat of imminent armed attack through kinetic means’,[11] and, consistently with what the US has been affirming since the 9/11 terrorist attacks,[12] can be committed by states or non-state actors.

Second, the position paper equated an armed attack to a generic ‘use of force’ (borrowing this language from article 2(4) UN Charter), without specifying the gravity or seriousness thereof. This means, therefore, that every single violation of article 2(4) UN Charter would constitute an armed attack and, as a consequence, an act of aggression.

Last but not least, in relation to those cases of self-defence fought against non-state actors and without the consent of the so-called territorial state, the US position paper reaffirmed what has been claimed over the last decades with regard to the US war against different terrorist organizations, namely, that an alleged victim State may resort to force when the territorial state is unwilling or unable to stop or prevent the actual or imminent armed attack.[13] This would also apply to the case of an ‘armed’ attack launched in or through cyberspace. However, it was added,

‘[i]f the territorial State does not consent to the use of force on its territory because it proposes to take a reasonable alternative course of action to respond to the actual or imminent armed attack or to allow others to do so, it generally should not be treated as “unwilling”.’[14]

This statement constitutes further clarification with respect to previous practice and could no doubt apply within the context of any US pre-emptive use of force against terrorist groups based in a state considered to be unwilling because it is ‘publicly silent’ when facing the risk of a military intervention justified on such grounds.

CONCLUSION

Although not wholly embraced by the fourth UN GEEs’s report adopted, the US position paper submitted to the Group in 2014 might reflect the Administration’s opinio iuris in relation to some spheres of the law of self-defence. On the one hand, as consistently claimed by the US since the 9/11 terrorist attacks, an armed attack within the meaning of article 51 UN Charter may be committed by either state or non-state actors. Moreover, an alleged victim state could act in self-defence also against a non-state actor, and even in the absence of the territorial state’s express consent.

On the other hand, the US position paper suggested that the US Administration could consider as armed attack (which, by its nature, is also an act of aggression) any violation of article 2(4) UN Charter. It furthermore provided a broader definition of armed attack so as to include cyber activities that do not imply any kinetic force. These two aspects, if upheld by the group, might well contribute to the modification of both the relevant provisions of the UN Charter and the correspondent customary norms.

[1] UNGA Res 53/70 (4 January 1999) UN Doc A/RES/53/70, para 2(c) [emphasis added].

[2] UNGA Res 70/237 (23 December 2015) UN Doc A/RES/70/2376, para. 5 [emphasis added].

[3] See UNGA 70/174 (22 July 2015) UN Doc A/70/174 paras. 24 and 28 (c). Cf UNGA 68/98 (24 June 2013) UN Doc A/68/98 para. 19.

[4] US Secretary of States, Daniel Webster, Letter to the British Envoy Extraordinary and Minister

Plenipotentiary in Washington on 24 April 1841 (as cited in Eric Heinze, Malgosia Fitzmaurice,

Landmark Cases in Public International Law (Martinus Nijhoff Publishers 1998) 1247-1255.

[5] See UNGA 70/174 (22 July 2015) UN Doc A/70/174 para. 26 [emphasis added].

[6] ibid. para. 28 (c) [emphasis added].

[7] Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) General List No 70 [1986] ICJ at 195.

[8] Article 2 (4) UN Charter [emphasis added].

[9] See, e.g., US Representative to the Sixth Committee of the UN General Assembly, John S Cooper,

Statement on 25 November 1968 (1080th meeting) in OR of the UN General Assembly (Twentythird

session). Sixth Committee. Legal questions. Summary records of meeting (1968).

[10] Ibid.

[11] Ibid.

[12] See US Permanent Representative to the UN, John D Negroponte, Letter to the President of the UN Security Council on 7 October 2001 UN Doc S/2001/946.

[13] See Yoram Dinstein, War, Aggression and Self -Defence (5th ed., Cambridge University Press 2011) 275.

[14] United States paper submitted to the 2014–15 Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (October 2014).

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