The International Criminal Court (ICC) has come under a lot of pressure in recent years from non-state parties in what it appears to be a series of efforts to interfere with the way in which the ICC conducts its mandate. Examples include the only recently rescinded US sanctions on certain officials from the Office of the Prosecutor of the ICC (OTP), including the Prosecutor at the time, and the former Israeli Prime Minister Benjamin Netanyahu Israeli insisting that the ICC represented “pure anti-Semitism”. With regards to the former, while many ICC supporters, including states, civil society organizations and bar associations, have expressed their support for the ICC and condemned the imposed sanctions, very few of them raised the question of the legality of such actions. In light of this, the question of whether international law prohibits obstructive acts against an institution such as the ICC becomes pertinent. As such, this article will seek to examine whether international humanitarian law (IHL) may provide a basis for rendering meddlesome actions by non-state parties against the ICC illegal.
It is well-established under international law that treaties only confer rights and obligations on state parties, whereas a third state may only be bound by such obligations if it has expressly accepted such an obligation in writing. The Rome Statute of the International Criminal Court also embeds this dichotomy, since State parties are under an obligation to fully cooperate with the ICC pursuant to Article 86, while on the other hand the ICC may only invite non-state parties to enter an ad hoc cooperation agreement with the ICC under Article 87(5). Nevertheless, in light of the nature of the crimes that fall under the jurisdiction ratione materiae of the ICC, an argument can be made in favor of the existence of legal obligations on the part of non-state parties to the Rome Statute to cooperate with the ICC on the basis of Article 1 common to the Geneva Conventions (“Common Article 1”).
Common Article 1 reads that “[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”. It is widely accepted that Common Article 1 has achieved customary law status, making its obligations binding for the community of states as a whole. Such obligations are both positive and negative in nature. On one hand, state parties are expected to take all possible measures to ensure that IHL is respected both by their own state bodies and persons under their jurisdiction, as well as by other state parties, regardless of whether the state in question is engaged in an armed conflict or not. On the other hand, state parties are prohibited from encouraging or contemplating violations of IHL (para. 220). It is in the context of the latter that engaging in actions that hinder the OTP from carrying out its mandate become problematic. In its interpretation of this provision, the International Court of Justice held that it prevents the US from distributing military operations manuals to the Nicaraguan anti-government military forces which encouraged them to commit acts contrary to Common Article 3 of the Geneva Conventions (p. 93). With respect to obstructive actions, one may rightly argue that interfering with the ICC would be equivalent to preventing accountability for grave breaches of the Geneva Conventions—which would constitute an IHL violation. Since the Rome Statute places grave breaches of the Geneva Conventions under the jurisdiction ratione materiae of the ICC, it would be absurd for a non-state party to the Rome Statute to be in compliance with its obligation to respect the Geneva Conventions under Common Article 1 while at the same time thwarting initiatives to penalize grave breaches of the Conventions.
To that however, one could argue that the “grave breaches” regime—outlined in the Geneva Conventions—is only concerned with states prosecuting grave breaches before their own courts. Thus, an international tribunal such as the ICC would not be considered involved in the regime of repression of grave breaches so as to trigger the Common Article 1 obligation. Nevertheless, a few points may be made in that regard. Of primary importance is the fact that the ICC jurisdiction is complementary to that of national courts, meaning that they do not operate in a disjointed fashion but instead the accountability efforts of national courts determine the admissibility of a case before the ICC. Furthermore, the ICC has expressly recognized that state parties “have transferred to the Court the same territorial jurisdiction as they have under international law” (para. 60). With this, the ICC has acknowledged that by accepting the jurisdiction of the ICC, state parties have likewise endowed it with the jurisdictional powers of their own national courts. Based on this, the jurisdiction of the ICC may rightly be seen as an extension of that of national courts. In this instance, when the ICC exercises jurisdiction over grave breaches of the Geneva Conventions, this may be considered tantamount to a national court exercising such jurisdiction. By conceptualizing national and international accountability efforts as a continuum instead of as disconnected exercises, one can conclude that the actions of the ICC fall under the repression of grave breaches regime. Consequently, interfering with such efforts by a non-state party to the Rome Statute entails the accountability of said state for failure to comply with its obligation not to foster violations of IHL under Common Article 1, since not ensuring accountability for grave breaches constitutes an IHL violation.
Although the Geneva Conventions are silent on accountability efforts undertaken by international tribunals, further support for the position above stems from the fact that Common Article 1 may require state parties to take measures not expressly stipulated in the Conventions whenever it might appear that the expressly required measures are insufficient. As Professor Zhu Wenqi pointed out in a very interesting article published in the International Review of the Red Cross: under Common Article 1, non-state parties to the Rome Statute have an “extended obligation to co-operate with the ICC” and such obligation “should be understood as requiring non-party states at least to make an effort not to block actions taken by the ICC to punish or prevent serious violations of the Geneva Conventions”. This obligation to cooperate with the ICC for non-state parties can also be regarded in the light of the positive obligations under the Geneva Conventions—such as the obligations related to mutual legal assistance in Article 88 of Additional Protocol I and those related to extradition—but such provisions are almost entirely subservient to the national law of the state in question or its other international agreements. Notwithstanding that such arrangements may prove insufficient for the purposes of ensuring accountability, this would require far greater attention than could possibly be accommodated within the scope of this article. It is however paramount, before such argumentation can be made, that the negative obligation not to block accountability efforts by the ICC be accepted.
To conclude, the analysis above demonstrates that non-state parties to the Rome Statute are in essence under an obligation not to derail ICC’s mandate. In light of the increasing number of attacks on the ICC, and in order to institute further condemnation of obstructing actions in international law it is vital that such obligation is accepted. A step further would be potentially invoking state responsibility for such hindrance. Nevertheless, it should be recounted that the obligations of states under Common Article 1 are confined to violations of the Geneva Conventions, which thus only concern Article 8 of the Rome Statute. Keeping that in mind, further analysis is needed to substantiate obligations of non-state parties in relation to other crimes within the ICC’s jurisdiction.