The ICC’s Independence Under Sanctions By States Non-Party To The Rome Statute: The Assembly Of States Parties As An Institutional Safeguard

Abstract

The unilateral sanctions imposed by the United States on officials of the International Criminal Court (ICC) in August 2026 raise legal questions concerning actions by a non-party state against ICC officials and the Court’s institutional functions. This study analyses ICC institutional independence, the privileges and immunities of ICC officials, and the authority of the Assembly of States Parties (ASP) in responding to external pressure. The study employs normative legal research using statutory and conceptual approaches. The analysis examines the Rome Statute, the Agreement on the Privileges and Immunities of the International Criminal Court (APIC), ASP resolutions, and official documents on sanctions against ICC officials. The findings indicate that Article 4 of the Rome Statute establishes the ICC’s international legal personality and legal capacity, while Article 48 and the APIC establish a treaty-based framework for privileges and immunities applicable to states bound by those instruments. Because the United States is not a party to either the Rome Statute or the APIC, these provisions cannot establish a breach of treaty obligations by the United States. This study proposes the Rome Statute Institutional Protection Mechanism as a model for strengthening institutional protection through the ASP’s authority under Article 112(4) to establish subsidiary bodies. The mechanism comprises three principal functions: coordinating collective responses by States Parties, protecting the continuity of the ICC’s institutional functions, and cooperation among States Parties in responding to external pressure while preserving the independence of the ICC’s judicial functions.