While the US is seeking to dismantle the International Criminal Court, it has signed a statement upholding the Hague tribunal’s South China Sea ruling
In Orwellian totalitarianism, two plus two can equal five. But with American hegemony, things can be A and not A at the same time.
Earlier this month, Washington declared war on the International Criminal Court (ICC), whose very existence, it claims, poses an “intolerable” challenge to America’s sovereignty. But, citing an international maritime law, it also led a coalition of 14 mainly Western countries in issuing a joint statement in support of a 10-year-old South China Sea arbitration ruling against Beijing.
Here’s the question: when they rule against states, don’t arbitral tribunals at The Hague pose as much of a challenge to their sovereignty as the ICC or any international court?
The US is not a party to the ICC or the UN Convention on the Law of the Sea (Unclos) on which the South China Sea arbitration was based. That tribunal was set up under Annex VII of Unclos. The Permanent Court of Arbitration served as the case’s registry.
The arbitration invalidated most of Beijing’s maritime claims, then referred to as the nine-dash line.
So why support one set of international laws but declare war on another?
The ICC has antagonised the US by issuing warrants for the arrest of close ally Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant over their conduct of the war in Gaza. On the other hand, the arbitration tribunal ruled against China, arguably an adversarial state.
The ICC also investigated US military personnel for suspected war crimes in Afghanistan. But when Karim Khan took over as ICC chief prosecutor in 2021, he deprioritised the probe. Khan is under US sanctions and this month was removed from office over allegations of sexual misconduct.
In the past decade, China has managed to work around its maritime claims through bilateral compromises with some involved countries. However, the Philippines is not one of them. Manila took the original complaint to arbitration and is one of the 14 signatories to this month’s joint statement, the only disputing country. Others – such as the US, Canada, Britain, Germany, Italy, Japan, Australia and New Zealand – are not even party to the maritime disputes.
The nine-dash line is arguably similar to the “Donroe doctrine” of US President Donald Trump, which effectively claims the entire western hemisphere as falling under America’s control or influence. US allies have yet to issue a joint protest statement against such designs.
According to the US State Department, Washington has launched a campaign that “will feature a whole-of-government response to systematically disable the ICC’s ability to operate, target American servicemen or officials, or otherwise threaten American sovereignty”.
The plan calls for visa restrictions and sanctions against the court’s personnel, even though Washington has already sanctioned at least 11 of its judges and prosecutors.
It will also penalise or discourage other countries from working with the ICC. At least 125 nations are full ICC member states. Isn’t US Secretary of State Marco Rubio threatening the sovereignty of states that support the work of the ICC, a central pillar of international law?
The BBC posted an interesting question: “The United States is not, nor has it ever been, a party to the ICC … But could the ICC investigate and indict Americans anyway?”
International law experts and human rights groups have warned that the US’ lethal air strike campaign in international waters in the Caribbean Sea and the Pacific Ocean could be war crimes or crimes against humanity. The extrajudicial killings have resulted in the deaths of 221 people aboard at least 67 boats since September last year.
Is Rubio pre-empting an ICC probe or even arrest warrants?
A conclusion that is hard to avoid: if an international court proves useful against an adversarial state, amplify its rulings. But if a court potentially threatens US interests, destroy it. That seems pretty much the US’ attitude towards international law in general.
But even if it were a state party to the ICC, the US does not have the authority to dismantle a global organisation established by a treaty under international law. It does have plenty of ways to paralyse the ICC though.
International law has often been criticised as lacking proper enforcement. The ICC is one of the few international legal organs that has teeth. That is precisely why Israel and the US have shown such hostility. The court is an invaluable part of global human rights protection. It’s not a breach of national sovereignty, except for rogue states.
