DATE DOWNLOADED: Sat Oct 7 04:14:48 2023

SOURCE: Content Downloaded from HeinOnline

Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.

Bluebook 21st ed.

Sara L. Ochs, Fake News & International Criminal Law, 66 St. Louis U. L.J. 99 (2021).

ALWD 7th ed.

Sara L. Ochs, Fake News & International Criminal Law, 66 St. Louis U. L.J. 99 (2021).

APA 7th ed.

Ochs, S. L. (2021). Fake news & international criminal law. Saint Louis University
Law Journal, 66(1), 99-114.

Chicago 17th ed.

Sara L. Ochs, "Fake News & International Criminal Law," Saint Louis University Law
Journal 66, no. 1 (Fall 2021): 99-114

McGill Guide 9th ed.

Sara L. Ochs, "Fake News & International Criminal Law" (2021) 66:1 St Louis U LJ 99.

AGLC 4th ed.

Sara L. Ochs, 'Fake News & International Criminal Law' (2021) 66(1) Saint Louis
University Law Journal 99

MLA 9th ed.

Ochs, Sara L. "Fake News & International Criminal Law." Saint Louis University Law
Journal, vol. 66, no. 1, Fall 2021, pp. 99-114. HeinOnline.

OSCOLA 4th ed.

Sara L. Ochs, 'Fake News & International Criminal Law' (2021) 66 St Louis U LJ 99
Please note: citations are provided as a general guideline. Users should consult
their preferred citation format's style manual for proper citation formatting.

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 FAKE NEWS & INTERNATIONAL CRIMINAL LAW

SARA L. OCHS*

ABSTRACT

In a decade defined by fake news, nations have weaponized disinformation

to attack political, legal, and social systems throughout the world. Specifically,
in recent years, government leaders have spread fake news about the
International Criminal Court ("ICC') in efforts to turn public opinion against
the ICC and deter its attempts to investigate andprosecute controversial cases.
Given the ICC's reliance on state party cooperation, not only does this use of
fake news hamper the Court's likelihood ofsuccessfully prosecuting crimes that
are of most concern to the international community, but it also promotes a
version of history that denies victims both truth and justice. This paper will
specifically examine how the governments of the United States and Israel have
utilized fake news to deter ongoing ICC investigations into crimes allegedly
committed by U.S. and Israeli nationals, and the detrimental effects of these
news campaigns. This paper will then identify changes necessary to better
protect the ICC-and international criminal law more generally-against fake
news campaigns, including the needfor greater clarity and widespread global
knowledge of the ICC'spowers andjurisdictional reach.

* Sara L. Ochs is an Assistant Professor of Law at the University of Louisville, Louis D. Brandeis
School of Law.

99
100 SAINT LOUIS UNIVERSITYLAWJOURNAL [Vol. 66:99

INTRODUCTION

In a decade defined by fake news, nations have weaponized disinformation

to disrupt political, legal, and social systems throughout the world. Specifically,
in recent years, government leaders have begun to utilize the media to spread
fake news regarding the International Criminal Court ("ICC") in efforts to deter
investigations and prosecutions in politically controversial cases. While fake
news poses significant threats to democracy and justice in general, it is
specifically damning for the ICC, given the Court's vulnerable foundations. As
a court without a police force or a traditional enforcement mechanism, 1 the ICC
is "absolutely, one hundred percent, dependent on effective cooperation with
States Parties," 2 and in some circumstances, the voluntary cooperation of non-
States Parties as well. This reliance on States Parties extends to everything from
arresting suspects, to facilitating witness and victim protection, to executing
searches and seizures. 3 Given this need for State Party cooperation, it is
imperative that the ICC enjoy significant perceived legitimacy. 4
States' willingness to comply with ICC requests and to assist in
investigations correlates directly with their perception of the Court's credibility
and legitimacy. 5 States Parties and non-States Parties are much more willing to
comply with the ICC when they view it as a legitimate institution focused on fair
and effective investigations, rather than a biased or politicized entity pursuing
its own objectives. 6 Moreover, the greater the levels of compliance that the ICC
receives from States, the greater the likelihood that the ICC Prosecutor will be

1. Danial Kaysi & Charles Faint, Political Will and Multilateral Cooperation in
InternationalJustice: An Interview with RichardGoldstone, 7 YALE J. INT'L AFF. 90, 91 (2012).
2. H.E. Judge Dr. jur. h. c. Hans-Peter Kaul, Second Vice President Int'l Crim. Ct., Keynote:
The International Criminal Court-Current Challenges and Perspectives 8 (Aug. 8, 2011),
https://www.icc-cpi.int/nr/rdonlyres/289b449a-347d-4360-a854-3b7d0a4b9f06/283740/0109
11 salzburglawschool.pdf.
3. Rome Statute of the International Criminal Court, arts. 92-93, July 17, 1998, 2187
U.N.T.S. 38544 [hereinafter Rome Statute].
4. In defining "perceived legitimacy," this essay adopts the definition articulated by
Professor Stuart Ford, as "how audiences subjectively perceive the legitimacy" of the ICC. Stuart
Ford, A Social Psychology Model of the PerceivedLegitimacy of InternationalCriminalCourts:
Implicationsfor the Success of TransitionalJusticeMechanisms, 45 VAND. J. TRANSNAT'L L. 405,
406 n.1 (2012).
5. See C. Cora True-Frost, Weapons of the Weak: The Prosecutor of the ICC's Power to
Engage the UN Security Council, 44 FLA. ST. U. L. REv. 261, 315 (2016) (recognizing that States'
"perceptions of the ICC's legitimacy affect their willingness to cooperate with the ICC").
6. See Yvonne M. Dutton, Bridging the Legitimacy Divide: The International Criminal
Court's Domestic Perception Challenge, 56 COLUM. J. TRANSNAT'L L. 71, 77 (2017) ("When
levels of domestic [perceived] legitimacy are high, individuals tend to comply, and push others to
comply, with institutional orders because they view the norms advanced by their institution as their
own.").
2021 ] FAKE NEWS & INTERNATIONAL CRIMINAL LAW 101

successful in investigating and prosecuting cases. 7 Thus, the ICC's level of

perceived legitimacy has significant impact on the. Court's prosecutorial
8
success.
Fake news regarding the Court's operations, its power, and its reach poses a
significant threat to the ICC's perceived legitimacy, and by extension, the
success of its investigations. Indeed, States subject to ICC investigation have
begun to weaponize disinformation to hijack the Court's perceived legitimacy
and prevent compliance with its investigations. Most recently, this fake news
has revolved around the ICC's jurisdictional reach. Highly publicized criticism
has been leveled against the Court by leaders of powerful States subject to the
ICC Prosecutor's investigations, labeling the ICC as-among other things-an
antisemitic institution, 9 and an "ineffective, unaccountable ... outright
0
dangerous,"' "kangaroo court,"" that "violat[es] all principles of justice,
fairness, and due process."' 2 This rhetoric is extremely damaging, as it clouds
public perception of the ICC and threatens its perceived legitimacy. Not only
does this hamper the likelihood of successfully prosecuting crimes that are of
most concern to the international community, but it also promotes a version of
history that denies victims both truth and justice.
Part I of this essay will briefly recognize the actual jurisdictional limitations
imposed on the ICC and the recent decisions by the Court which have clarified
its jurisdictional reach. In demonstrating the significance and impact of fake
news on the operations of the ICC and the functioning of international criminal

7. ASP 2017: State Cooperation Crucialfor an Effective ICC, COAL. FOR INT'L CRIM. CT.
(Nov. 7, 2017), https://www.coalitionfortheice.org/news/20171107/asp-2017-state-cooperation-
crucial-effective-icc#:-:text=With%20no%20enforcement%20mechanism%20of,to%20cooperate
%20with%20the%20ICC (highlighting the detrimental impact on investigations of state non-
cooperation by explaining the challenges the ICC Prosecutor has faced in investigating crimes
within the Situation in Darfur, Sudan).
8. Sara L. Ochs, Propaganda Warfare on the International Criminal Court, 42 MIcH. J.
INT'L L. 581, 582 (2021).
9. Press Release, Israel Ministry of Foreign Affs., Prime Minister Netanyahu's statement
regarding the ICC decision (Feb. 6, 2021), https://mfa.gov.ili/MFA/PressRoom/2021IPages/State
ment-by-PM-Netanyahu-regarding-the-ICC-decision-6-February-2021.aspx [hereinafter
Netanyahu Statement Regarding ICC Decision].
10. Full Text ofJohn Bolton's Speech to the FederalistSociety, AL JAZEERA (Sept. 10, 2018),
https://www.aljazeera.com/news/2018/09/full-text-john-bolton-speech-federalist-society-180910
172828633.html [hereinafter Bolton Speech to FederalistSociety].
11. Reuters Staff, Pompeo on ICC: US. won't be threatenedby 'kangaroocourt,'REUTERS
(June 11, 2020), https://www.reuters.com/article/us-warcrimes-afghanistan-trump-pompeo/pom
peo-on-icc-u-s-wont-be-threatened-by-kangaroo-court-idUSKBN23I2AJ (quoting then Secretary
of State Mike Pompeo).
12. Donald Trump, U.S. President, Remarks by President Trump to the 73rd Session of the
United Nations General Assembly (Sept. 25, 2018), https://usoas.usmission.gov/remarks-by-
president-trump-to-the-73rd-session-of-the-united-nations-general-assembly-new-york-ny/
[hereinafter Trump Remarks to U.N. General Assembly].
102 SAINT LOUIS UNIVERSITY LAWJOURNAL [Vol. 66:99

law more generally, Part II will present two ongoing case studies in which
powerful state governments have utilized fake news pertaining to the ICC's
jurisdiction to undermine the legitimacy and functions of the Court. The first
will analyze the United States Government's use of fake news in responding to
the ICC Prosecutor's investigation into Afghanistan, while the second will detail
the Israeli Government's ongoing use of falsehoods to derail the Prosecutor's
investigation into crimes committed in Palestine. Part Ill will argue for the need
for greater clarity and widespread global knowledge of the ICC's powers and
jurisdictional reach to best combat the fake news to which it is routinely
subjected.

I. THE ICC'S JURISDICTIONAL REACH

The ICC's jurisdiction extends only to crimes against humanity, genocide,
war crimes, and the crime of aggression,1 3 committed after July 1, 2002, the date
on which the Rome Statute entered into force,14 and-except in cases referred
to the Court by the United Nations Security Council' 5-committed on the
territory or by a national of a State Party. 16 Moreover, these purely jurisdictional
restrictions are complemented by additional limitations imposed by the Rome
Statute on the type of cases the ICC is authorized to hear.
Even if a case falls within the jurisdiction of the Court, the Rome Statute
further requires that the case be deemed admissible for the Court to hear it.17
This admissibility requirement encompasses two distinct conditions. First, the
case must be one that domestic courts are unwilling or genuinely unable to
prosecute. 18 This principle of complementarity ensures that the Court acts as "a
court of last resort," as the Rome Statute intended, permitting the ICC to step in
only when domestic courts fail to prosecute atrocity crimes that fall within their
jurisdiction. 19 Second, the case must be of "sufficient gravity to justify" ICC

13. Rome Statute, supra note 3, at art. 5.

14. Id. at art. 11. For States which joined the Rome Statute after July 1, 2002, the Court
generally will only have jurisdiction over crimes committed in those States' territories or by their
nationals which occurred after the Rome Statute entered into force for that State. Id. at art. 11(b).
Likewise, with regard to the crime of aggression, the ICC only has jurisdiction over crimes
committed one year after thirty States Parties' ratification or acceptance of amendments to the
Rome Statute pertaining to the crime of aggression. Id. at art. 15(2) bis.
15. The Security Council may refer a matter involving crimes committed anywhere or by
anyone in the world, including crimes committed on the territory of a non-State Party or by a non-
State Party national. Dapo Akande, The Effect of Security Council Resolutions and Domestic
Proceedings on State Obligations to Cooperate with the ICC, 10 J. INT'L CRIM. JUST. 299, 305
(2012).
16. Rome Statute, supra note 3, at art. 12.
17. Id. at art. 17.
18. Id. at art. 17(1)(a)-(b).
19. About the Court, INT'L CRIM. CT., https://www.icc-cpi.int/about (last visited Jan. 5,2021);
see also Rome Statute, supra note 3, art. 1 (explaining that the ICC "shall be complementary to
2021 ] FAKE NEWS & INTERNATIONAL CRIMINAL LAW 103

action. 20 This gravity requirement, pursuant to which the ICC considers factors
including the scale, nature, and impact of the crimes upon which a case is
premised, guarantees that the ICC will hear only cases involving "the most
serious crimes of concern to the international community as a whole." 21
Moreover, the Rome Statute further limits ICC authority by mandating that
the Court exercise its jurisdiction over admissible cases under only three
circumstances: when a State Party refers a situation to the ICC Prosecutor; when
the United Nations Security Council refers the situation to the Prosecutor; or
when the Prosecutor initiates an investigation into crimes on his or her own
propio motu authority. 22 These strict restrictions on the ICC's reach render it
"deferential and non-invasive to its member States, especially those with highly
sophisticated and international justice conscious domestic judiciaries." 23
Several recent decisions have clarified the bounds of the ICC's jurisdiction,
namely as it applies to State Party-referred or Prosecutor-initiated Situations.
The first came in 2018 with the Pre-Trial Chamber's jurisdictional decision in
the Prosecutor-initiated Situation in Bangladesh/Myanmar. 24 In that decision,
Pre-Trial Chamber I determined that it had jurisdiction over the alleged crime of
humanity of deportation of Rohingya Muslims from Myanmar-which is not a
State Party to the Rome Statute-to Bangladesh-which is a State Party. 25 The
judges reasoned that because an element of the crime of deportation-the
crossing of a border-occurred on the territory of Bangladesh, the alleged crime
fell within the Court's jurisdiction. 2 6
Following this decision, the Court also confirmed that it had jurisdiction
over nationals of two other non-States Parties, each of which holds significant
geopolitical power on the world stage. First, in March 2020, the ICC Appeals

national criminal jurisdictions"); see also Akande, supra note 15, at 314 (recognizing the ICC as a
court is premised upon "principle of complementarity").
20. Rome Statute, supra note 3, at art. 17(1)(d).
21. Rome Statute, supranote 3, at art. 5; Margaret M. deGuzman, Gravity and the Legitimacy
of the InternationalCriminal Court, 32 FORDHAM INT'L L.J. 1400, 1450-56 (2009).
22. Rome Statute, supra note 3, at art. 13, 15(1).
23. Christopher "Kip" Hale & Maanaska K. Reddy, A Meeting of the Minds in Rome: Ending
the Circular Conundrum of the U.S.-ICC Relationship, 12 WASH. U. GLOBAL STUD. L. REv. 581,
599 (2013).
24. Request Under Regulation 46(3) of the Regulations of the Court, ICC-RoC46(3)-01/18,
Decision on Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute
(Sept. 6, 2018), https://www.icc-cpi.int/CourtRecords/CR2018_04203.pdf [hereinafter Decision on
Bangladesh Jurisdiction].
25. Id. at ¶ 73. This conclusion was later reaffirmed by ICC Pre-Trial Chamber III. Situation
in the People's Republic of Bangladesh/Republic of the Union of Myanmar, ICC-01/19, Decision
Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the
Situation in the People's Republic of Bangladesh/Republic of the Union of Myanmar, ¶ 62 (Nov.
14, 2019), https://www.icc-cpi.int/CourtRecords/CR2019_06955.pdf.
26. Decision on Bangladesh Jurisdiction, supranote 24, at ¶ 73.
104 SAINTLOUIS UNIVERSITY LA WJOURNAL [Vol. 66:99

Chamber considered whether the ICC Prosecutor could move forward with a
propio motu investigation into war crimes and crimes against humanity
committed in Afghanistan, as well as related crimes committed in other States
Parties' territories since 2003 by the Taliban and affiliated terrorist groups, the
Afghan National Security Forces, and members of the U.S. Armed Forces and
Central Intelligence Agency ("CIA"). 27 With respect to U.S. military and
intelligence personnel, then Prosecutor Fatou Bensouda 28 sought to investigate
alleged war crimes committed both in Afghanistan and at CIA "black sites" in
countries including Lithuania, Poland, and Romania. 29 The Appeals Chamber
ultimately authorized Prosecutor Bensouda to proceed with the investigation,
finding that the crimes at issue "may constitute crimes within the jurisdiction of
the Court." 30 Although this finding in and of itself was largely unremarkable,
given that Afghanistan is a State Party to the Rome Statute, its practical impact
was significant in that it authorized the Prosecutor to pursue an investigation
against nationals of one of the most powerful non-States Parties: the United
States.
Then, in February 2021, the ICC's Pre-Trial Chamber I issued a ruling
declaring the ICC has territorial jurisdiction over alleged war crimes falling
within the open Situation in Palestine.31 Palestine had referred the Situation to

27. Situation in the Islamic Republic of Afghanistan, No. ICC-02/17 OA4, Judgment on the
appeal against the decision on the authorisation of an investigation into the situation in the Islamic
Republic of Afghanistan, ¶ 4 (Mar. 5, 2020), https://www.icc-cpi.int/CourtRecords/CR2020
_00828.pdf [hereinafter ICC Appellate Decision on Afghanistan Investigation]. The Appeal
Chamber's decision reviewed Pre-Trial Chamber HI's April 2019 decision rejecting Prosecutor
Bensouda's request to proceed with an investigation into Afghanistan. Situation in the Islamic
Republic of Afghanistan, Case No. ICC-02/17, Decision Pursuant to Article 15 of the Statute on
the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (Apr.
12, 2019), https://www.icc-cpi.int/CourtRecords/CR2019_02068.pdf.
28. Prosecutor Fatou Bensouda of The Gambia concluded her nine-year tenure as ICC Chief
Prosecutor on June 16, 2021, and was replaced in this role by International Lawyer and UK
Barrister Karim Khan. Karim Khan sworn in as new ICCchiefprosecutor, DEUTSCHE WELLE (June
16, 2021), https://www.dw.com/en/karim-khan-sworn-in-as-new-icc-chief-prosecutor/a-57916
216.
29. David J. Scheffer, The ICC's Probe into Atrocities in Afghanistan: What to Know,
COUNCIL ON FOREIGN REL. (Mar. 6, 2020, 3:03 PM), https://www.cfr.org/article/ices-probe-
atrocities-afghanistan-what-know.
30. ICC Appellate Decision on Afghanistan Investigation, supra note 27, at¶ 62. The Appeals
Chamber specifically authorized the Prosecutor to investigate alleged war crimes related to the
Afghanistan situation even when the capture of a victim and the alleged criminal act occurred
outside Afghanistan. Id. at ¶ 76. However, the Court was cautious to note that to determine whether
the ICC had jurisdiction over these specific crimes "a careful analysis of the circumstances of each
case will need to be carried out to establish whether there is a sufficient nexus" to the armed conflict
in Afghanistan. Id.
31. Situation in the State of Palestine, ICC-01/18, Decision on the Prosecution request
pursuantto article 19(3) for a ruling on the Court's territorialjurisdiction in Palestine (Feb. 5, 2021),
2021 ] FAKE NEWS & INTERNATIONAL CRIMINAL LAW 105

the ICC Prosecutor, who, following a preliminary examination, concluded there

existed a reasonable basis to believe war crimes were committed in the 2014
Gaza Conflict and near the border fence between the Gaza Strip and Israel
beginning in March 2018.32 In January 2020, Prosecutor Bensouda requested,
pursuant to Rome Statute article 19(3), that the Pre-Trial Chamber issue a ruling
clarifying the scope of the Court's jurisdiction in the Situation in Palestine, and
specifically whether it extended to the Israeli-occupied portions of Palestine. 33
By relying on Palestine's status as a non-member observer state in the United
Nations and its 2015 accession to the Rome Statute, the Pre-Trial Chamber
concluded that Palestine is a State Party to the Rome Statute.34 As such, it
determined the Court has authority to exercise jurisdiction over Occupied
Palestinian Territory, including Gaza-which encompasses East Jerusalem-
and the West Bank.35
These two latter decisions sparked immediate backlash from the United
States, Israel, and several of their allies and prompted an onslaught of fake news
about both the Court's authority and its jurisdictional reach.

II. FAKE NEWS & FAKE JURISDICTION

Disinformation campaigns against the ICC are not new. 36 Yet, the recent
decisions finding that ICC jurisdiction extends to crimes committed by nationals
of powerful non-States Parties has generated fake news campaigns against the
ICC by the United States and Israel. These campaigns involve highly publicized
statements made by U.S. and Israeli leaders and the dissemination of anti-Court
propaganda misrepresenting the ICC's authority, intent, and jurisdiction in
efforts to weaponize public opinion against the Court. Both the fake news
campaigns initiated by the United States and Israel pose significant concerns to
the ICC's effectiveness given the Court's extreme reliance on perceived
legitimacy.

A. The United States & The Investigation in Afghanistan

Even before the ICC authorized the Prosecutor's investigation into
Afghanistan, the United States Government, under the Trump Administration,

https://www.icc-cpi.int/CourtRecords/CR2021_01165.pdf [hereinafter Pre-Trial Chamber

Decision on Jurisdiction in Palestine].
32. Situation in the State of Palestine, ICC-01/18, Prosecution request pursuant to article 19(3)
for a ruling on the Court's territorial jurisdiction in Palestine, ¶ 94-96 (Jan. 22, 2020),
https://www.icc-cpi.int/CourtRecords/CR2020_00161 .pdf.
33. Id. at ¶¶18-20.
34. Pre-Trial Chamber Decision on Jurisdiction in Palestine, supra note 31, at ¶¶ 109-113.
35. Id. at ¶60.
36. See Ochs, supra note 8, at 592 (detailing the "propaganda war" leveled against the ICC by
Kenya in response to the Court's indictments of Uhuru Kenyatta and William Ruto, the current
President and Deputy President of Kenya).
106 SAINT LOUIS UNIVERSITY LAWJOURNAL [Vol. 66:99

had taken decisive action against the ICC, utilizing the media to launch a fake
news campaign aimed to discredit the Court. Interestingly, the Trump
Administration's public defense did not proclaim U.S. troops' innocence in
committing alleged war crimes, but instead spread widespread disinformation
about the Court's jurisdictional reach.
In September 2018, several months after Prosecutor Bensouda filed her
request to open the investigation in Afghanistan, then National Security Advisor
John Bolton gave a widely publicized speech to the Federalist Society in which
he lambasted the ICC as a "free wheeling global organization" that claimed
"automatic jurisdiction" over crimes with "disputed and ambiguous
definitions." 37 Bolton's statements were supplemented both by the United States
Government's revocation of Prosecutor Bensouda's entry visa into the United
States3 8 and by repeated claims from high-ranking U.S. leaders, including then
Secretary of State Michael Pompeo and President Donald Trump, exaggerating
the reach of the ICC's jurisdiction. 39 For instance, in a speech before the United
Nations General Assembly in 2018, President Trump falsely declared that the
ICC "claims near-universal jurisdiction over the citizens of every country,
violating all principles ofjustice, fairness, and due process," 40 a statement which
is categorically false, as evidenced by the limitations imposed by the Rome
Statute.
Following the ICC Appeals Chamber's ruling authorizing Prosecutor
Bensouda's investigation, the Trump Administration amplified its use of fake
news with significant action. After Secretary Pompeo publicly denounced the
ICC as an "unaccountable political institution masquerading as a legal body,""
President Trump signed an Executive Order on June 11, 2020, which declared a
national emergency arising from the "unusual and extraordinary threat to the
national security and foreign policy of the United States" posed by the ICC's
investigation of U.S. personnel. 42 In light of this national emergency, the
Executive Order authorized the imposition of sanctions against ICC personnel

37. Full Text ofJohn Bolton's Speech to the FederalistSociety, AL JAZEERA (Sept. 10, 2018),
https://www.aljazeera.com/news/2018/09/full-text-john-bolton-speech-federalist-society-180910
172828633.html.
38. Bolton Speech to FederalistSociety, supra note 10.
39. See e.g., Trump Remarks to U.N. General Assembly, supranote 12; News Wires, US bars
entry to ICC investigators, says 'attackingAmerica's rule of law', FRANCE 24 (modified Dec. 4,
2019, 7:44 PM), https://www.france24.com/en/20190315-usa-icc-investigators-afghanistan-
pompeo (detailing a speech by Secretary of State Pompeo in which he described the ICC as having
"broad unaccountable prosecutorial powers," and pursuing "politically motivated prosecution of
Americans").
40. Trump Remarks to U.N. General Assembly, supra note 12.
41. Press Statement, Michael R. Pompeo, Sec'y of State, U.S. Dep't of State, ICC Decision
on Afghanistan (Mar. 5, 2020), https://2017-2021.state.gov/icc-decision-on-afghanistan
/index.html.
42. Exec. Order No. 13928, 85 Fed. Reg. 36,139 (June 11, 2020).
 r

2021] FAKE NEWS & INTERNATIONAL CRIMINAL LAW 107

and those non-U.S. nationals who assisted the ICC in its investigation into
Americans.43 On September 2, 2020, Secretary Pompeo formally announced the
issuance of sanctions pursuant to the Executive Order against Prosecutor
Bensouda and Phakiso Mocochoko, the ICC's Head of Jurisdiction,
Complementarity and Cooperation Division, which had the effect of freezing
any assets they had in or which transferred through the United States.44
While the controversial Executive Order has since been revoked by current
President Joseph Biden, with the effect of terminating the national emergency
and lifting sanctions, the Biden Administration has maintained its opposition to
the ICC's Afghanistan Investigation.45 Specifically, in revoking the Executive
Order, President Biden wrote that the United States sustains its objections to the
ICC's "assertions of jurisdiction over personnel of such non-States Parties as the
United States and its allies absent their consent or referral by the United Nations
Security Council."'
Yet, the text of the Rome Statute, with which the United States Government
is undoubtedly familiar, having initially signed the treaty under the Clinton
Administration, despite not ratifying and incorporating it into U.S. domestic
law, 47 clearly disputes both the Trump Administration's and President Biden's.
categorization of the ICC. United States nationals allegedly committed war
crimes on the territory of Afghanistan, a State Party to the Rome Statute, and in
doing so, rendered themselves susceptible to ICC jurisdiction. Moreover, the
United States could avoid ICC prosecution by conducting a domestic
investigation and prosecution of its own officials, thereby preempting the Court
from moving forward in cases against U.S. nationals pursuant to the

43. Id.
44. Blocking Property of Certain Persons Associated with the InternationalCriminal Court
Designations, U.S. DEP'T OF TREASURY (Sept. 2, 2020), https://home.treasury.gov/policy-
issues/financial-sanctions/recent-actions/20200902; Laurel Wamsley, Trump Administration
Sanctions ICC ProsecutorInvestigatingAlleged U.S. War Crimes, NPR (Sept. 2, 2020, 6:27 PM),
https://www.npr.org/2020/09/02/908896108/trump-administration-sanctions-icc-prosecutor-
investigating-alleged-u-s-war-crim.
45. Press Release, The White House, Executive Order on the Termination of Emergency with
Respect to the International Criminal Court (Apr. 1, 2021), https://www.whitehouse.gov/briefing-
room/presidential-actions/2021/04/01/executive-order-on-the-termination-of-emergency-with-
respect-to-the-international-criminal-court/.
46. Id.
47. While President Bill Clinton signed the Rome Statute, he later recommended that his
successor, President George W. Bush not submit the statute to the Senate for ratification. Press
Release, William J. Clinton, U.S. President, Statement on the Rome Treaty on the International
Criminal Court (Dec. 31, 2000), https://www.govinfo.gov/content/pkg/WCPD-2001-01-08/pdf
/WCPD-2001-01-08-Pg4.pdf. President Bush complied with the recommendation, and in 2002,
John Bolton, in his role as U.N. Ambassador under President Bush, wrote to U.N. Secretary General
Kofi Annan, expressing the United States' intent to "unsign" the Rome Statute. See Letter from
John R. Bolton, Under Sec'y of State for Arms Control & Int'l Sec., to Kofi Annan, U.N. Sec'y
Gen. (May 6, 2002), https://2001-2009.state.gov/r/pa/prs/ps/2002/9968.htm.
108 SAINTLOUIS UNIVERSITY LAWJOURNAL [Vol. 66:99

complementarity principle. Yet, the United States has still failed to do so. 48
Instead, U.S. leaders and government officials have engaged in widespread
rhetorical attacks against the Court, misrepresenting the Court's jurisdiction and
intent in front of a U.S. audience that is relatively uninformed about the ICC's
procedural reach.

B. Israel & The Situation in Palestine

Like the U.S. response to the Afghanistan investigation, Israeli authorities'
reactions to the ICC Pre-Trial Chamber's February 2021 ruling finding
jurisdiction over alleged crimes committed within the Palestine Situation were
swift and aggressive. In a public video released shortly after the Pre-Trial
Chamber issued its opinion, Prime Minister Benjamin Netanyahu denounced the
ICC's ruling as "pure antisemitism." 49 He complained that the Court displayed
double standards by pursuing investigations into alleged Israeli crimes while
"refus[ing] to investigate brutal dictatorships like Iran and Syria," and
denounced the ICC as "targeting the one state of the Jewish people." 50 His
comments were echoed by other Israeli officials, including Israeli Foreign
Minister Gabi Ashkenazi who declared that the Pre-Trial Chamber's decision
turned the ICC "into a political tool of anti-Israel propaganda." 51
On March 3, 2021, following the Pre-Trial Chamber's jurisdictional ruling,
Prosecutor Bensouda issued a statement confirming the Office of the
Prosecutor's opening of an investigation into the Situation in Palestine.52 In her
announcement, Prosecutor Bensouda made clear that her office intended to work
to "establish accountability and deliver justice for the Palestinian and Israeli
victims of crimes covered by the Rome Statute." 5 3 Israeli authorities responded
to the announcement by launching another wave of fake news.
The continued campaign of fake news included the creation of a website,
ostensibly created by the Israeli Ministry of Strategic Affairs, which opens with
a webpage declaring the ICC as having "No Standing. No Jurisdiction. No

48. Situation in the Islamic Republic of Afghanistan, ICC-02/17-7-Conf-Exp, Public redacted

version of Request for authorization of an investigation pursuant to article 15, 1 296 (Nov. 20,
2017), https://www.icc-cpi.int/CourtRecords/CR2017_06891.pdf (noting that as of 2017,
Prosecutor Bensouda was "unable to obtain specific information or evidence with a sufficient
degree of specificity and probative value that demonstrates that proceedings were undertaken with
respect to cases of alleged detainee abuse by member of the US armed forces in Afghanistan.").
49. Netanyahu Statement Regarding ICC Decision, supra note 9.
50. Id.
51. Lazar Berman, Facing possible ICC probe, Israel still has options before judgment day,
TIMES ISRAEL (Feb. 7, 2021, 10:51 PM), https://www.timesofisrael.com/facing-possible-icc-
probe-israel-still-has-options-before-judgment-day/.
52. Press Release, ICC, Statement by the ICC Prosecutor, Ms. Fatou Bensouda, on an
investigation into the situation in Palestine (Mar. 3, 2021), https://www.icc-cpi.int/Pages/item
.aspx?name=210303-prosecutor-statement-investigation-palestine&ln=fr.
53. Id. (emphasis added).
-
2021] FAKE NEWS & INTERNATIONAL CRIMINAL LAW 109

Case." 54 Rather than providing an overview of the ICC's jurisdictional

principles and detailed reasoning of the Pre-Trial Chamber's decisions finding
ICC jurisdiction over Occupied Palestinian Territories, the website repeatedly
denounces the ICC as a tool of anti-Israeli groups and declares the Pre-Trial
Chamber's jurisdictional decision as having the effect of "transforming [the
ICC] from a legal body to a political one." 5 5
Compounding these false, public assertions, the Israeli Government, under
no uncertain terms, made clear it would not cooperate with the Prosecutor's
investigation into the Palestinian Situation and urged its allies to do the same. 56
Public statements by Israeli state leaders continue to paint the investigation as
"antisemitic," hypocritical, and "morally bankrupt." 5
Like the United States, Israel has not prosecuted its nationals for the alleged
war crimes being investigated, nor has its government expressed any intent to
do so. Instead, in addition to refusing to cooperate in any way with the ICC
Prosecutor's investigation, Israel has sought to destroy the Court's reputation
and legitimacy, by portraying it as a racist, politicized mechanism, rather than
one intended to bring accountability for those victims for whom justice would
otherwise remain elusive.

III. COMBATING FAKE NEWS THROUGH KNOWLEDGE

Both the United States and Israel responded to the ICC's potential threat of
prosecution by targeting the Court where it is weakest: by undermining its
legitimacy. As noted previously, as a court which relies heavily on the
cooperation of its States Parties and non-States Parties-in those situations
involving crimes committed by nationals or on the territories of non-States

54. ICC: No Standing. No Jurisdiction. No Case., ICC JURISDICTION, https://iccjurisdiction

.com/#icc (last visited May 26, 2021).
55. Id.
56. Press Release, Prime Minister's Office, PM Netanyahu Holds Discussions on Israeli
Policy regarding the Statement of the International Court in The Hague on the Opening of an
Investigation against the State of Israel (Apr. 8, 2021), https://www.gov.il/en/Departments/
news/spoke_court080421 (referring to a letter sent to the ICC Prosecutor by an Israeli inter-
ministerial team noting Israel's intent not to cooperate with the investigation and presenting its
position that the Prosecutor is acting without jurisdictional authority); Press Release, Israel Ministry
of Foreign Affs., FM Ashkenazi on ICC announcement regarding the initiation of an investigation
(Mar. 3, 2021), https://mfa.gov.il/MFA/PressRoom/2021/Pages/FM-Ashkenazi-on-ICC-announce
ment-3-March-2021.aspx [hereinafter Ashkenazi Announcement on ICC Investigation].
57. Ashkenazi Announcement on ICC Investigation, supra note 56; Press Release, Israel
Ministry of Foreign Affs., Remarks by PM Netanyahu on the ICC Decision (Mar. 3, 2021),
https://mfa.gov.i/MFA/PressRoom/2021/Pages/Remarks-by-PM-Netanyahu-on-the-ICC-
Decision-3-March-2021.aspx; Press Release, Israel Ministry of Foreign Affs., President Rivlin
comments on the International Criminal Court Decision (Mar. 3, 2021), https://mfa.gov.il/MFA/
PressRoom/2021 /Pages/President-Rivlin-comments-on-the-International-Criminal-Court-decision
-3-March-2021.aspx.
110 SAINT LOUIS UNIVERSITY LA W JOURNAL [Vol. 66:99

Parties-it is critical that the Court be widely perceived as a neutral, competent,

and effective judicial mechanism. 5 8 Repeated and highly publicized claims
misrepresenting the Court's jurisdictional power and intentions from the United
States, one of the most powerful nations in the world, and Israel, one of its
primary allies, presents a significant threat to the ICC's perceived legitimacy
both in States Parties and non-States Parties. This is especially so given the lack
of widespread knowledge regarding the Court's mandate and its jurisdictional
limitations.
A 2018 survey conducted by Ipsos made clear the lack of knowledge about
the Court among the American public. Only forty-five percent of 1,004
Americans polled in the survey were aware of the existence of the ICC. 59 Of
those who admitted awareness, relatively few had a basic knowledge of the ICC,
with sixty-two percent incorrectly believing that the United States is a State
Party to the Rome Statute. 60 Likewise, in another 2018 study of 1,020
Americans, half of the participants admitted to having no knowledge of the ICC,
and the survey creator recognized that those participants who admitted to having
knowledge were not "deeply familiar with the Court." 61 And while both of these
studies reveal American ignorance when it comes to the ICC, this lack of
knowledge extends internationally as well. While public opinion data regarding
the International Criminal Court is limited, surveys conducted in countries like
Uganda and the Central African Republic-States Parties to the Rome Statute
and countries in which the ICC had been actively investigating and prosecuting
crimes-reflect that relatively little is known by the general public about the
ICC and its workings. 62

58. See supra PartI.

59. Number of Americans Who Support the ICC Grows, IPSOS (Apr. 11, 2018),
https://www.ipsos.com/sites/default/files/ct/news/documents/2018-04/american_bar_association-
factum-2018_04_1 l.pdf [hereinafter Ipsos 2018 Public Opinion Poll].
60. Id Other researchers encountered a similar problem. In a 2019 study of 1,020 online
participants, about half had no prior knowledge of the ICC, and even those with knowledge were
not deeply familiar. Kelebogile Zvobgo, The Trump administration opposes the International
CriminalCourt. Do Americans Agree?, WASH. POsT (Apr. 28, 2019, 1:00 AM), https://www.wash
ingtonpost.com/politics/2019/04/28/trump-administration-opposes-international-criminal-court-
do-americans-agree/.
61. Zvobgo, supra note 60.
62. PATRICK VINCK & PHUONG PHAM, BUILDING PEACE SEEKING JUSTICE: A POPULATION-
BASED SURVEY ON ATTITUDES ABOUT ACCOUNTABILITY AND SOCIAL RECONSTRUCTION IN THE
CENTRAL AFRICAN REPUBLIC 3 (Hum. Rts. Ctr., Univ. of Cal., Berkeley 2010), https://hhi
.harvard.edu/files/humanitarianinitiative/files/building-peace-seeking-justice.pdf?m=1612807649
(finding that only one third of survey respondents in the Central African Republic had heard of the
ICC); Knowledge and Perception of the ICC, HARv. HUMANITARIAN INITIATIvE,
http://www.peacebuildingdata.org/research/uganda/resuts/justice-accountability/knowledge-
perception-icc (last visited June 11, 2021) (describing a 2010 survey conducted in Northern Uganda
recognizing that "factual knowledge of the ICC is relatively low").
2021 ] FAKE NEWS & INTERNATIONAL CRIMINAL LAW 111

As a result of this lack of knowledge, the public is very susceptible to outside

comments in forming an opinion about the Court. Thus, repeated false
statements by state leaders about the Court are especially influential among an
uninformed public and can easily radicalize public opinion against the ICC as
an unaccountable, politicized, or even racist institution. This is especially so
given that high-profile politicians' statements about the Court are often
highlighted in national and international media, whereas information about the
Court and its jurisdiction is much less publicly available to those unfamiliar with
international criminal justice. Further, when officials and entities support and
defend the ICC against fake news campaigns, these defenses often go
underreported, at least in comparison to the misrepresentative comments that
sparked those defense. 63 Thus, while fake news campaigns against the Court
often dominate media and the internet, proponents' statements of truth often go
ignored.
Indeed, without proper foundational knowledge of the ICC, it is easy for the
public to criticize or misunderstand its intent or authority. This has repeatedly
proved problematic for the Court, fostering unrealistic expectations of what
cases the Court can and should hear. While the Court has been robustly criticized
by leaders like President Trump and Prime Minister Netanyahu for conducting
investigations into crimes over which the Court has jurisdiction, the Court also
receives regular public criticism for failing to hear cases over which it lacks
jurisdiction.6r As noted in the Office of the Prosecutor's 2019-2021 Strategic
Plan, "affected communities and members of the public often expect the Office
[of the Prosecutor] to exercise jurisdiction in the most serious situations of
conflict and criminality around the world, including situations where the Court
has no jurisdiction." 65
Moreover, public opinion polls reflect that the ICC's mandate aligns with
the type of justice the public seeks. For instance, in the aforementioned 2018
Ipsos Study, seventy-three percent of the 1,004 Americans polled endorsed
"international organizations that support human rights and hold individuals
accountable for mass atrocities." 66 Thus, even without knowing about the ICC
or its specific procedures, these Americans are supportive of its mandate.

63. Ochs, supra note 8, at 622.

64. See, e.g., HARDtalk, Chile Eboe-Osuji: Can the International CriminalCourt achieve its
goals?, BBC SouNDs (June 22, 2020), https://www.bbc.co.uk/sounds/play/w3cszcly (in which the
host criticized former ICC Judge and President Eboe-Osuji both for the ICC's decision to pursue
an investigation into U.S. nationals, in a case in which the Court has found it has jurisdiction, and
for failing to pursue an investigation in Syria, where the Court has no jurisdiction); see also
Netanyahu Statement Regarding ICC Decision, supranote 9 (criticizing the ICC for not pursuing
investigations against Iranian and Syrian dictators).
65. ICC Off. of the Prosecutor, Strategic Plan 2019-2021, at ¶ 8(a) (July 17, 2019),
https://www.icc-cpi.int/itemsDocuments/20190726-strategic-plan-eng.pdf.
66. Ipsos 2018 Public Opinion Poll, supra note 59.
112 SAINTLOUIS UNIVERSITYLAWJOURNAL [Vol. 66:99

Likewise, among those more familiar with the ICC, many want the Court to
continue its work in prosecuting atrocity crimes that would otherwise go
unpunished. For instance, in a 2020 online survey of 1,009 Canadians, ninety-
five percent of respondents agreed that the ICC should "investigate alleged war
crimes wherever they may occur." 67
Given these views, it reasons that if the public were more familiar with the
ICC, its mandate, and the Prosecutor's reasons for pursuing the cases before the
Court, the public would be supportive. However, this support is impossible when
the public is only exposed to the bombastic, misleading narratives woven by the
Trump and Netanyahu Administrations. Accordingly, the ICC, and specifically
the Office of the Prosecutor, need to devote more resources and effort to
fostering public knowledge and understanding of the ICC-including its
jurisdictional reach and limitations-to cultivate greater legitimacy. Only
through the spread of truth and knowledge can the ICC effectively fight against
fake news campaigns.
While the ICC is perpetually constrained by limited resources, to recover
from the potential impact of the ongoing fake news campaigns, the Court must
dedicate time, funds, and effort to spreading knowledge and information about
the Court throughout both States Parties and non-States Parties-especially
those currently subject to investigation. This requires a more effective use of
public relations, an area in which the Court has previously fallen flat. 68
Specifically, the Court must work to more widely and clearly disseminate
information pertaining to ICC processes and procedures to the public and
effectively promote its accomplishments. Additionally, greater attention must be
devoted to outreach, in which the Court connects with and seeks cooperation
from the victims of the crimes it is investigating. 69

CONCLUSION

As the Prosecutor's investigations into both Afghanistan and Palestine

remain ongoing, the full impacts of the United States' and Israel's fake news
campaigns against the Court have yet to be seen. And while fake news can pose
devastating consequences to the ICC, given its reliance on cooperation, it has

67. Canadians for Justice and Peace in the Middle East, et al., No Double Standards:
Canadians Expect Greater Impartiality vis-a-vis Israel, 8 (Sept. 16, 2020), https://d3n8a8pro7
vhmx.cloudfront.net/cjpme/pages/5082/attachments/original/1600108564/Survey_2020_Release_
two_%E2%80%93_Final.pdf?1600108564 (emphasis in original).
68. Bartram S. Brown, The International Criminal Court in Africa: Impartiality, Politics,
Complementarity and Brexit, 31 TEMP. INT'L & COMP. L.J. 145,155 (2017) (critiquing the ICC for
"bad public relations" in the context of the Kenya Situation).
69. Independent Expert Review of the International Criminal Court and the Rome Statute
System Final Report, at 125-26, ICC-ASP/19/16 (Sept. 30, 2020) (defining outreach efforts as
opportunities for the ICC to "win the confidence, support, and cooperation of people and
communities that have often been traumatized and scarred by the events the ICC is investigating").
2021]1 FAKE NEWS & INTERNATIONAL CRIMNAL LAW 113

also provided the Court with some unanticipated benefits. Through highly
publicized comments and controversial sanctions, the United States and Israel
have opened a public dialogue around the International Criminal Court-an
entity which relatively rarely graces the pages of widely read international news
sources-and in doing so, have offered the Court public fora in which to explain
its operations to the public and tout its accomplishments. This presents the
perfect opportunity for the ICC to educate the public about its work and
limitations and to cultivate public support.
Moreover, as journalist Thierry Cruvellier has recognized, political leaders'
recognition of the ICC as a threat to superpowers like America and its allies,
gives the Court "some of the stature it lacks."7 0 At the same time, the United
States' and Israel's current predicaments highlight their state leaders' failure to
prosecute their own nationals for the commission of internationally recognized
crimes-an action which would effectively shut down any opportunity for ICC
investigation and prosecution. This perspective both shames these nations for
their failure to prosecute heinous atrocities by their nationals and drives home
one of the primary goals of the ICC: to achieve justice for terrible crimes that
would otherwise go unpunished.
The ICC, as an institution dedicated to prosecuting "the most serious crimes
of concern to the international community as a whole," 71 will always be
controversial and will constantly bear the brunt of fake news and false claims.
However, if handled correctly, the ICC just may be able to utilize this misleading
rhetoric for its own benefit.

70. Thierry Cruvellier, Why the LC.C. Should Rejoice when America Attacks It, N.Y. TIMES
(Sept. 16, 2018), https://www.nytimes.com/2018/09/16/opinion/international-criminal-court-icc-
bolton-us.html
71. Rome Statute, supra note 3, at art. 1.
114 SAINT LOUIS UNIVERSITYLAWJOURNAL [Vol. 66:99