ICC Review: A Call to Protect ICC Defenders

Photeine Lambridis, Legal Intern, Coalition for the ICC
Since its inception in 2002, the International Criminal Court (ICC) has faced threats to its legitimacy and independence from States Parties and non-State Parties alike. Witnesses have allegedly received bribes, members of civil society organizations have faced physical threats in response to their ICC activities, and governments have enacted regulations to silence journalists in response to their reports on ICC-related activities and calls to end impunity.

In this article, I will give key examples of the rising threats against defenders of the ICC over the past five years. I will then argue for strengthening state cooperation based on historical evidence that alliances have bolstered the ICC’s independence and effectiveness. Finally, in the context of the ongoing ICC Review process, I will put forth recommendations for strengthening state cooperation in order to protect these ICC defenders.

Evidence of increasing threats:

The ICC’s Office of the Prosecutor is currently conducting nine preliminary examinations—the most in its history. At the same time, there is a recorded increase in the number of threats aimed at ICC defenders during the course of some preliminary examinations, likely in an effort to prevent investigations from being opened.

For example, in 2016, an employee of Palestinian NGO Al-Haq was threatened in response to the ICC’s preliminary examination into the situation in Palestine. The individual received phone calls and emails threatening her life and her family after she provided information to the ICC related to the Court’s investigation into the situation in Palestine.

In another instance, Jude Sabio, a Filipino lawyer, received numerous death threats after filing a complaint to the ICC in 2017 accusing Philippine President Rodrigo Duterte and another eleven Philippine officials of crimes against humanity. Consequently, Mr. Sabio sent a letter to ICC Prosecutor Bensouda in January 2020 asking her to withdraw his complaint. In response, the ICC stated that the retraction would not have any impact on the preliminary examination and that the Office of the Prosecutor "cannot effectively destroy or return information once it is [in] its possession or control."

Threats against ICC defenders have also persisted into investigations, particularly against ICC personnel in response to investigations that have been opened by the Prosecutor (proprio motu).

For example, the U.S. government issued an executive order on June 11, 2020, following the opening of an investigation into the situation in Afghanistan. The order authorizes asset freezes and travel bans against ICC officials, their family members, and any foreign person who is “engaged in any effort by the ICC to investigate, arrest, detain, or prosecute” U.S. personnel or the personnel of a U.S. ally. Furthermore, on September 2, 2020, the U.S. Secretary of State Mike Pompeo announced the imposition of sanctions, pursuant to Executive Order 13928, against Prosecutor Bensouda and the Head of the Jurisdiction, Complementarity and Cooperation Division of the ICC Office of the Prosecutor, Phakiso Mochochoko. Both Bensouda and Mochochoko have been added to the U.S. Department of the Treasury’s Office of Foreign Assets Control’s List of Specially Designated Nationals and Blocked Persons. Likewise, following the ICC’s opening of the investigation into Palestine, the Israeli government considered preventing ICC staff from entering Israel, with Israeli Prime Minister Netanyahu calling for sanctions against ICC personnel.

Historical support for strengthening state alliances:

Fortunately, collective action has been moderately successful in pushing back against similar threats in the past. For example, in 2002, the U.S. government pressured states to sign bilateral immunity agreements with the U.S. in order to shield U.S. citizens from potential ICC prosecution, threatening to otherwise withdraw their development and military aid. Prior to this, the EU’s support of the ICC was limited to general declaratory statements, but once U.S. threats intensified, EU member states jointly committed to refrain from signing these agreements. This attracted the political backing of additional states who then followed suit. Over half of ICC States Parties publicly refused to sign and ultimately, the U.S. revoked its policy of cancelling military and economic aid and the number of agreements currently in force declined.

The actions of political allies can also shape state policy towards the ICC. For example, Japan began to actively consider ratifying the Rome Statute only after the U.S. eased its opposition towards the ICC in 2005, when the U.S. refrained from vetoing the UN Security Council’s referral of the situation in Darfur and after observing Mexico join the ICC without U.S. backlash. Scholars have argued that Japan waited for U.S. opposition to soften in order to avoid jeopardizing their alliance with the U.S. for security reasons, which was important given China’s rising military power and North Korea’s increasing nuclear threat.

Recommendations:

In response to calls made by States Parties, ICC personnel, and civil society, a formal process of reviewing and strengthening the ICC and the Rome Statute system was adopted at the previous session of the Assembly of States Parties (ASP) and is currently taking place under the purview of the ASP. This provides an opportunity for the ICC and for States Parties to address potential methods of strengthening state cooperation and deterring non-cooperation in order to better protect defenders of the ICC.

Beyond Rome Statute signatures and ad hoc cooperation agreements, States Parties need to more forcefully condemn actions that threaten ICC defenders, such as visa bans and asset freezes. States Parties should jointly formulate a cohesive strategy that supports the ICC even during instances when it may be politically inconvenient. The absence of such a coordinated approach yields disheartening results: only 67 of 123 States Parties—just over half—signed a joint statement condemning the U.S. Executive Order.

States Parties could respond by uniformly imposing sanctions to these types of threats. For example, some scholars have suggested that the EU could utilize its “blocking statute” or enact a similar statute to that effect. To counter the new U.S. sanctions against Iran, the EU updated its blocking statute in August 2018 by prohibiting EU persons and entities from complying with the U.S. sanctions and blocking EU authorities from recognizing and enforcing U.S. sanctions determinations. 

States could utilize a “carrot and stick” approach to provide political pressure in response to non-cooperation. For example, the EU factors a state’s ratification and implementation of the Rome Statute into its alignment rate as a condition for EU membership. Another potential “carrot” could be if states and intergovernmental organizations insert conditionality clauses into international agreements to create political incentives, similar to the incorporation of an ICC clause into the Cotonou Agreement. Such ICC clauses could be used as leverage during bilateral negotiations.

The ASP has already undertaken some initiatives to improve state cooperation and deter non-cooperation by adopting procedures relating to non-cooperation, producing a non-cooperation “tool kit,” and appointing five focal points on non-cooperation to engage with stakeholders on related issues. However, beyond referring a State Party’s refusal to cooperate to the ASP, there is little, if any, penalty imposed on States Parties. Apart from letters to non-cooperative States Parties and press releases, the ASP should consider imposing sanctions more frequently by effectively removing a State Party’s voting power or by increasing its required financial contributions to the Court.

Conclusion:

Now more than ever, it is clear that the ICC needs the staunch support of States Parties in order to protect ICC defenders and execute its mandate. By ratifying the Rome Statute, States Parties empower the Court with its legal authority and complementary jurisdiction. Without their active cooperation, defenders of the ICC will continue to face threats and the Rome Statute’s effectiveness will diminish, making it even more difficult for the ICC to execute its mandate to end impunity.