On US sanction against International Criminal Court

Dr. Yubaraj Sangroula


Additional institutions and forums are facing economic sanctions and opposition from the US government, thus breaking the international cooperation and pushing international system in corner.

The Trump administration’s decision to impose economic sanction against the World Health Organization was an unwelcome action and a sheer setback in the international system. Now, President Trump chooses to add the International Criminal Court (ICC) in the high hit list. It is an indirect threat to the European nations who volunteered to set up the ICC as a mechanism to address abuses of war and war-like activities.

Throwing the missile of sanctions, he said that the sanction is a “steadfast commitment to protecting American service members and defending our national sovereignty”. The Trump administration is apparently pushing military strategy in international affairs provocatively, which is a grave regression from multilateral cooperation framework.

This sanction seemingly encourages American security personnel to rescind from respecting international humanitarian and human rights laws in conflicts. Already, the Bush administration obliterated the position of international criminal law’s position by enacting the “Netherlands Evasion Act,” which allows the US government to forcefully rescue its officials from the custody of the court charged with crime against humanity, peace and war of laws.

Now the sanction against the court articulates the ‘willingness of the Trump administration’ as the desired practice of the obsessive theory of American exceptionalism. And this definitely manifests the administration’s entrenched wishes to ignore, rescind and downplay the regime of international law.

The present economic sanction fully disables the court from investigation or prosecution of the US personnel without the consent of the United States. Most unfortunately, the administration has also authorized the expansion of visa restrictions against ICC officials and their family members.

Why the Trump administration chose to take such unwanted step against the court, seemingly demeaning the international effort to prevent inhuman crimes, including violation of the law against war. The need of establishing the court was already prompted by the Nuremberg Trial in 1946, which prosecuted the Nazi war criminals. This international tribunal was then established in initiation of the US administration and it had played crucial role in prosecuting war criminals.

Looking from that vantage point, the US is supposed to ratify the Rome Statute voluntarily as one of the original parties to it. But, to the great surprise of the global human rights and humanitarian communities, the US has not only rejected the ICC’s jurisdiction over United States personnel in war crimes, but also acted to prevent nations under its influence to accept the process of being parties to the Statute.

As most conscious people in the world are aware, the US policy against the court is inspired by its perpetual imperial ambition and its relentless intent to use or exercise the right to use force against any nation or entity, under Article 4 of the UN Charter, preventively as well as preemptively.

Several US intellectuals, including Noam Chomsky, have described this claim as the US’s perceived supremacy over the United Nations and international law. This is definitely a challenge of the US to the freedom and independence of sovereign nations guaranteed by the Charter as well as the customary international law.

The officials in the US administration have frequently argued that ‘the US as a sovereign nation is able to decide to protect and preserve its interests.’ That said, the ICC’s actions are described as attacks on the rights of the American people.  Its jurisdiction is also taken as the violation of the national sovereignty of the US.

The US denial of the court’s jurisdiction includes the United States personnel as well as personnel of its allies and partners. It manifestly implies that the court is disabled to enjoy international jurisdiction against war crimes against citizens or institutions of the NATO members and other countries that the US defines as its partners.

Nepal, for instance, is a partner country of the US pursuant to the MCC agreement. It is the biggest hypocrisy against international law to prevent the scourge of wars and violation of the rights of people to life. Thus US sanctions attempt to subvert the UN regime and the significance of international law.

Arguably, the sanction has expressly legitimated the ‘US hegemony.’  The text of the sanction reads, “Despite repeated calls by the United States and our allies to reform, the International Criminal Court has taken no action to reform itself and continues to pursue politically motivated investigations against us and our allies, including Israel.” It continues, “We are concerned that adversary nations are manipulating the International Criminal Court by encouraging these allegations against United States personnel.  Further, we have strong reason to believe there is corruption and misconduct at the highest levels of the International Criminal Court Office of the Prosecutor, calling into question the integrity of its investigation into American service members.”

The Covid-19 pandemic has severely afflicted human lives. This has now been turned to be not only an economic but a human catastrophe. The poor people in the globe are severely hit and vulnerable to facing further traumatic situation. In the most developed countries, particularly with neo-liberal capitalism, common people have to encounter double tragedy—the crisis of health on the one hand and economic deprivation on the other.

The failure of capitalism and the state structure in the US has proved dysfunctional. The State, under the influence of the powerful rich, is not only unaccountable but also ignorant. The class-based division is acute. However, the drive of the US military maneuverings is seen apparently provocative and aggressive. The resenting attempts to concentrate military forces with powerful naval fleets in the Asia pacific are alarming.


Image credit: Marina Riera

It seems that the US administration is keen to transform the trade crisis with China into cold war, thus accelerating the pace of encircling China as a declared goal. This raises a serious concern against peace and tranquility in the world. Do these affairs heighten the US hegemony in the post-Covid 19 situation? Many people think that it will happen so. If it is true, the world will again face a situation of turmoil and war-driven tragedy.

But the likelihood of the US initiating the war is still scant, the reason being its ailing capitalism and stooping production system. The unregulated market and corporatism have virtually led the US society to the state of javon paradox—the state in which the political and social structures are unable to respond to the problem.

Secondly, China is not inclined seeking the superpower’s place in the globe. It can be argued that China would not afford to be provoked. The American wish that some Asian nations would be prepared to attack China as per the desire of the US is unlikely too. The likelihood of India flying to the Western alliance is increasing, but it would be fatal to the Indian interests itself. Joining the alliance with the US and Israel, along with proxy status of NATO, India will lose Iran and will severely cut off from countries like Malaysia, Indonesia and the larger Islamic world.

Such maneuverings will push Iran and Pakistan more closely attached, and Russia may distance with India as well. Ultimately, the Indo-pacific game may turn against India, a costly choice for that nation. Nepal’s silent but active drive to flirt with the US Indo-Pacific may also face a blow.

The present US sanction should therefore be viewed in the present context of its increasing nexus between military campaign and diplomacy. Hopefully, the so-called human rights campaigners in Nepal will pay attention to this regressive action.

The writer is Executive Director and Principal at Kathmandu School of Law.

Published on 13 July 2020