In your recent article, you show how the ICC’s response to contestation changed once it came to see the 2016 withdrawal threat as existential. What does that experience tell us about how the court is understanding the pressures it faces today, from the US campaign to dismantle it to a new wave of withdrawals?
We know from other international organisations (IOs) that IOs learn from their past experiences with contestation. The United Nations Population Fund (UNFPA), for example, was confronted with budget cuts by every United States (US) government under a Republican president since the mid-1980s. The first time such cuts occurred under US President Reagan, it took the organisation by surprise. By the time President Trump came into office in 2016, however, UNFPA was prepared: it had already diversified its funding sources and had built a strong network of supporters. The same can be said about the International Criminal Court (ICC). One thing the court learned from the African contestation crisis is the notion that it should always be prepared to be challenged, especially by states who are in some way affected by the court’s investigations. When comparing the most recent withdrawal announcements with the earlier crisis, however, the current challenge does not seem to be part of a concerted effort mobilising the African Union, as was the case during 2016. Therefore, the court is more likely to consider the current withdrawals as case-related rather than as an existential threat.
As for the US sanctions, which not only target individual judges but also the court as an institution, this is certainly understood as the most existential threat that the ICC has ever faced. Not least of all because it directly affects everyone working for the court – in how they work, but importantly also in their private lives, from access to their bank accounts to applying for loans and travel restrictions. In this case, the court can luckily draw on its previous experiences with sanctions under the first Trump government, which it successfully withstood with support of European and other states. However, it remains to be seen how effectively the court will be able to mobilise support in the upcoming months before the sanctions come into effect.
Of course, the court is in a different situation today than it was in 2016. While then-Chief Prosecutor Fatou Bensouda could rely on her strong standing within the international community, particularly among African state leaders, the misconduct and abuse of office by her successor, Karim Khan – who was removed from office without the appointment of a new head prosecutor – has damaged the credibility of the chief prosecutor position. It is now up to the remaining court leadership, particularly the presidency, to build strong relations with supporting states in the court’s drive for universality.
Your work on international organisations shows how IOs respond to various forms of contestation. How do the actions by the United States, who has now been sanctioning the ICC as an institution after sanctioning the court’s president and judges earlier, differ from contestation by member states?
States’ contestation is a recurring phenomenon in the history of IOs. In my work on the League of Nations, I show that even the earliest global IO had to fend off contestation by some of its member states, and initially did so with success. Internal contestation, i.e., contestation by member states, can take many forms. Probably the most extreme form is state withdrawal or withdrawal threats, although the reasons for state withdrawal from IOs are manifold and not necessarily related to contestation. In other circumstances, member states have contested through consistent non-compliance: for example, violations of the EU’s rule-of-law policies in the cases of Poland and Hungary, blocking staff appointments like the US has done regarding the appointment of judges for the WTO dispute settlement body, or through budget cuts as far-right-party governments often do. And beyond states, history has shown that contestation can also occur through societal groups or other external actors. Responding to contestation from civil society organisations, for example, the United Nations Office on Drugs and Crime changed its drug policies.
However, the US sanctions targeting the ICC (and its overall aim to dismantle the court as well as the international legal order) should not be confused with contestation understood as the practice of objecting to or critically engaging with social norms and institutions. Instead, the US sanctions should be viewed as the exertion of power by a hegemonic state over the current international order with the objective to modify that order according to their interests. While certainly impactful and existentially threatening – given the economic and logistic dependence of the ICC and the UN system on the US – the principles and institutions will continue to persist as long as its members hold on to them.
You suggest the court may need a new champion among Western states and a re-designed narrative. What would meaningful support from other states and potentially the EU look like?
It is of utmost importance that all parties to the Rome Statute now stand strong in their public support for the ICC, in bilateral and multilateral settings as well as towards their domestic publics. Withdrawals from the Rome Statute take effect within two years after the official announcement is submitted. There is thus ample time to engage with those governments that announced a withdrawal to reverse their decision before it takes effect. Pacific-Island state Naoero, for example, announced its withdrawal unexpectedly during the UN General Assembly meeting, shortly after the US President called on states parties to the Rome Statute to withdraw. The court’s leadership and supporting actors should make sure that states are not withdrawing because of US pressure. What is more, ICC supporters should look for key moments to win back the withdrawing states. Especially when there is a change in government, the chances for renouncing the ICC withdrawal are higher, as we have seen with The Gambia.
The EU has a large role to play in defending the ICC, and is already working in this direction: for example, the Council President gave a statement in support of the court during the last UN General Assembly and the European Parliament awarded this year’s Sakharov Prize to the ICC. Still, the EU needs to increase pressure on those countries that have announced their withdrawal, for example by making economic support dependent on their membership in the court.
When it comes to US sanctions, some European actors – including the Dutch foreign minister – advocate for more dialogue to convince the US government to reverse its sanctions (potentially by offering concessions). However, making a case in favour of the ICC is most likely a lost cause with the current US government, as it is set on destroying the ICC (and might also turn towards the International Court of Justice next). Instead, governments need to make sure the US is isolated in this endeavour.
The US sanctions should be viewed as the exertion of power by a hegemonic state over the current international order with the objective to modify that order according to their interests.
A strong response to the US sanctions could include legal precautions. The European Commission could activate a legal shield by amending the existing European Union Blocking Statute to prohibit compliance with the US sanctions against the ICC. While this measure is contested and may therefore not be adopted, it is essential that the EU provide support to companies and banks that come under pressure from the US government due to their contracts with the ICC, especially in the 6-month transition period that the US government has announced.
Last but not least, members of domestic parliaments can also play an important role: they can sign the recent declaration in support of the ICC and advocate for the court’s mission among their citizens. A new and strong communication strategy is needed to gather support for the court at the citizen level in all countries by emphasising the need for universality and countering unwarranted criticism by explaining the court’s principle of complementarity. Support for the international legal order and institutions like the ICC now must come from all levels of society for it to be most effective.
Gisela Hirschmann is Senior Assistant Professor of International Relations at Leiden University.
Photo: UN Photo / Flickr
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