The U.S. vs. International Criminal Court: Is This the End of International Criminal Court and Justice?

Prajakta Pradhan

Guest Editor The International Criminal Court (ICC) symbolizes hope around the world. The ICC, in its current form, was officially established in 1998 to prosecute individuals for only the worst international crimes such as genocide, crimes against humanity, war crimes, and the crime of aggression.[1] It functions independently of the United Nations’ International Court of Justice.[2] Calls for a universal judicial body like this had been increasingly abundant since World War I.[3] Precursor court to the ICC includes the Nuremberg Trials in the 1940s and ad hoc courts, which were set up for Yugoslavia war. The Western powers advanced the idea of ICC in the aftermath of the failure of the United Nations to prevent the genocide of 8000 Bosnian Muslims in Srebrenica during the Balkan Wars in 1994-95[4] and the mass murder of 800,000 members of Tutsi tribe in Rwanda.[5] The court was created in the midst of repeated calls to put an end to exceptions for those criminals who engaged in the mass slaughter of civilians or any other abominable acts. [6] The U.S. is not a party to the Rome Statute and has been highly ambivalent about the idea of the ICC since its inceptionNow, two decades after the ratification of the Rome Statute, it looks like there is a threat of its demise at the hands of powerful nations.[7] The ICC judges crimes against humanity, war crimes, and genocide.[8] The biggest drawback of the ICC is that it is based on the principle of complementarity, i.e., its jurisdiction is limited to the nations who have ratified the Rome Statute, and to the alleged crimes that occurred in a state that has no effective legal system to prosecute it due to a lack of capacity or political will.[9] The ICC is often called a ‘political court’ because it handles cases referred to it by the U.N. Security Council, so it inevitably gets involved in the geopolitics of the Security Council. But it has been argued by ICC supporters that various provisions in the Rome Statute prevent politically motivated cases. For example, no investigation can be initiated at the will of ICC’s prosecutor. Instead, a three judge panel approves an investigation, and only then it is initiated.[10] The court has also been criticized for prejudicially targeting only African countries.[11] All 26 cases brought before the court so far have dealt with crimes committed in Africa. History of the U.S. and the ICC The U.S. is not a party to the Rome Statute. The architect of U.S. policy on the Rome Statute was then, and even now is, former U.S. Ambassador to the UN John Bolton.[12]The reason why American critics are concerned is that ICC can be used as a tool so that warrants may be issued to charge American military staff before the court, despite the fact that the U.S. military has its own system for investigating any such charges under the War Crimes Act, of 1996.[13] U.S.’s ally Israel also has similar concerns with the ICC due to its bad experiences with multilateral institutions in the past, that have made baseless allegations against Israel Defence Force soldiers to the effect that they engaged in a war crime.[14] The U.S. has been cognizant of the dangers that an abused ICC could pose for its ally Israel. Therefore, the United States law prohibits economic supports for the Palestinian authorities if it prompts a process that places Israelis under an ICC investigation.[15] In September, the U.S. took repressive measures against ICC and Palestine and shut down the Palestine Liberation Organization (PLO) office in Washington because of its calls for an ICC inquiry into Israel.[16] John Bolton said that the United States “will use any means necessary to protect its citizens and those of its allies from unjust prosecution”[17] by the illegitimate court and if the court comes after US, Israel, or other U.S. allies they will not sit quietly. He further condemned the inquiry into war crimes in Afghanistan as an “utterly unfounded, unjustifiable investigation.” [18] Two weeks later, President Trump addressed the U.N. General Assembly, stating that the “United States will provide no support or recognition to the International Criminal Court. As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority.” [19] On 5 March 2020, the ICC’s Chief Prosecutor Fatou Bensouda was authorized by ICC’s appeal chamber to open an investigation against U.S. military personnel and CIA, Afghanistan Government and Taliban on alleged war crimes.[20] As soon as the declaration came, U.S. Secretary of State, Mike Pompeo, said that “The ICC is attacking America’s rule of law, it’s not too late for the court to change course and we urge that it do so immediately.”[21] He also said that Washington was prepared to take further steps, including economic sanctions, if the war crimes court goes ahead with any investigations of the U.S. or allied personnel. Moreover, the United States would revoke or deny visas to members of the International Criminal Court involved in investigating the actions of U.S. troops in Afghanistan or other countries. Many human rights critics view America’s response as a naked attempt to bully judges and undermine international law,[22] claiming that it creates a precedent and impetus that enables every highhanded leader in the world to trample upon the idea of the rule of law and to threaten and intimidate the structures of justice, at home and abroad whenever they can. These threats feed, in turn, the threat that President Duterte of the Philippines has made against the ICC Prosecutor: vowing to arrest her and throw her in jail, if he ever gets hold of her.[23] Moreover, it shows that for the United States, international law matters only when it is favorable to it. Does the ICC have jurisdiction to prosecute U.S. personnel?  According to President Donald Trump, the ICC does not have any jurisdiction over U.S. military personnel. In reality, ICC does have the jurisdiction to do so because the war crimes were committed on the soils of Afghanistan, which is a member of the ICC.[24] Moreover, it is a fundamental principle of international law that citizens of any country who commit any crime abroad are subject to the jurisdiction of courts of the state in which they committed the crime.[25] The U.S. also argues against the investigation by stating the fact that it has already investigated 101 cases of alleged abuse by the CIA and the U.S. military that was deployed in Afghanistan. Human Rights Watch, on the other hand, claims that the investigation done by the U.S. was only a ‘show’ because neither any charges were brought up against the CIA nor any arrests took place against the U.S. military. Furthermore, the Human Rights Watch accused the CIA of producing fake pieces of evidence in their support and was hence responsible for butchering the entire investigation.[26] Why does it look like the international criminal court and international criminal justice is on its death bed?  The main problem with the ICC is that it has very limited powers and resources to conduct an investigation. It depends upon the cooperation of member states for gathering information.[27] In the present case, the ICC will not even get support from the Afghan government since the charges are also introduced against them. The United States has already threatened the ICC members, and the American Service-Members’ Protect Act also prohibits U.S. officials from voluntarily cooperating with ICC. The ICC has resolved 26 cases, issued 32 arrest warrants, and awarded six prison sentences. However, in cases of war crimes and crimes against humanity, there have been minimal convictions. Global powers such as the U.S., Russia, and China pose a continuous threat to the existence of ICC. They recently blocked a case from being referred to the ICC by the United Nations by using their positions as Permanent Five members of the Security Council. This shows how International Law can be controlled by the hands of powerful nations. Without the cooperation of the most influential nations, the ICC will continue to have limited efficacy and will not be able to fulfil its mission of prosecuting the gravest breaches of international law.

[1] Icc-cpi.int (2020), https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf (last visited May 22, 2020). [2] Is The International Criminal Court Effective? | NowThis World, NowThis World (2018), https://www.nowthisworld.net/is-the-international-criminal-court-effective/ (last visited Apr 15, 2020). [3] History of the ICC, Iccnow.org (2020), http://iccnow.org/?mod=icchistory (last visited May 22, 2020). [4] Holocaust Museum Houston, Hmh.org (2020), https://hmh.org/library/research/genocide-in-bosnia-guide/ (last visited Jun 1, 2020). Bosnian Genocide, HISTORY (2020), https://www.history.com/topics/1990s/bosnian-genocide (last visited Jun 1, 2020). [5] Rwanda’s 100 days of slaughter, BBC News (2019), https://www.bbc.com/news/world-africa-26875506 (last visited May 22, 2020). [6] Icc-cpi.int (2020), https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf (last visited May 22, 2020). [7] Ramesh Thakur, Geopolitics Of justice: Lazarus-like, the ICC rises from the dead to investigate war crimes in Afghanistan Times of India Blog (2020), https://timesofindia.indiatimes.com/blogs/toi-edit-page/geopolitics-of-justice-lazarus-like-the-icc-rises-from-the-dead-to-investigate-war-crimes-in-afghanistan/ (last visited May 22, 2020). [8]  Ohchr.org (2020), https://www.ohchr.org/Documents/Countries/CD/FS-2_Crimes_Final.pdf (last visited Jun 1, 2020). Icc-cpi.int (2020), https://www.icc-cpi.int/Pages/about-icc.aspx (last visited Jun 1, 2020). [9] Icc-cpi.int (2020), https://www.icc-cpi.int/NR/rdonlyres/20BB4494-70F9-4698-8E30-907F631453ED/281984/complementarity.pdf (last visited May 22, 2020). [10] Office of the Prosecutor, Icc-cpi.int (2020), https://www.icc-cpi.int/about/otp (last visited May 22, 2020). [11] Christa-Gaye Kerr, Sovereign Immunity, the AU, and the ICC: Legitimacy Undermined, 41 Mich. J. Int’l L. 195 (2020).  Africa Debate — Is the ICC Targeting Africa Inappropriately?, The International Criminal Court Forum (2020), https://iccforum.com/africa (last visited May 22, 2020). [12] Philip Gourevitch, What Is John Bolton’s Bully-Pulpit Attack on the International Criminal Court Really About? The New Yorker (2020), https://www.newyorker.com/news/daily-comment/what-is-john-boltons-bully-pulpit-attack-on-the-international-criminal-court-really-about (last visited May 22, 2020). [13] Explainer: Why Does The U.S. Have It Out For The International Criminal Court?, RadioFreeEurope/RadioLiberty (2020), https://www.rferl.org/a/explainer-why-does-u-s-have-it-out-for-international-criminal-court-/29484529.html (last visited May 22, 2020). [14] Israel set to be investigated for war crimes in Palestinian Territories, ICC announces, The Independent (2020), https://www.independent.co.uk/news/world/middle-east/israel-war-crime-palestine-icc-hague-netaynahu-idf-investigation-a9255246.html (last visited May 22, 2020). [15] The Two-State Delusion, Google Books (2020), https://books.google.co.in/books?id=3_kVBAAAQBAJ&pg=PA306&lpg=PA306&dq=United+States+law+prohibits+economic+support+to+Palestinian+over+icc&source=bl&ots=v02naGtQyL&sig=ACfU3U2kcBJcnpmYZZkhSc-bVbqExSOkvA&hl=en&sa=X&ved=2ahUKEwj3v66_l8fpAhXXbX0KHSYKATIQ6AEwAXoECAgQAQ#v=onepage&q=United%20States%20law%20prohibits%20economic%20support%20to%20Palestinian%20over%20icc&f=false (last visited May 22, 2020). US to close PLO mission in Washington, BBC News (2020), https://www.bbc.com/news/world-middle-east-45471420 (last visited May 22, 2020). [16] Krishnadev Calamur, Trump’s New Attempt to Push Palestinians to Negotiate With Israel The Atlantic (2020), https://www.theatlantic.com/international/archive/2018/09/plo-office-dc-icc-trump/569767/ (last visited May 22, 2020). [17] Explainer: Why Does The U.S. Have It Out For The International Criminal Court?, RadioFreeEurope/RadioLiberty (2020), https://www.rferl.org/a/explainer-why-does-u-s-have-it-out-for-international-criminal-court-/29484529.html (last visited May 22, 2020). [18] John Bolton threatens ICC with sanctions: ‘We will not cooperate’, Aljazeera.com (2018), https://www.aljazeera.com/news/2018/09/threatens-icc-judges-sanctions-180910113100340.html (last visited Apr 13, 2020). [19] Q&A: The International Criminal Court and the United States, Human Rights Watch (2018), https://www.hrw.org/news/2019/03/15/qa-international-criminal-court-and-united-states (last visited Apr 13, 2020). [20]  I.C.C. Allows Afghanistan War Crimes Inquiry to Proceed, Angering U.S., Nytimes.com (2020), https://www.nytimes.com/2020/03/05/world/europe/afghanistan-war-crimes-icc.html (last visited May 22, 2020). [21] US to deny visas for ICC members investigating alleged war crimes, the Guardian (2020), https://www.theguardian.com/us-news/2019/mar/15/mike-pompeo-us-war-crimes-investigation-international-criminal-court (last visited May 22, 2020). [22] US bars entry to ICC investigators, says ‘attacking America’s rule of law’, France 24 (2019), https://www.france24.com/en/20190315-usa-icc-investigators-afghanistan-pompeo (last visited Apr 14, 2020). [23] Martin Petty, ‘I will arrest you’: Duterte warns ICC lawyer to steer clear of Philippines U.S. (2018), https://www.reuters.com/article/us-philippines-duterte-icc/i-will-arrest-you-duterte-warns-icc-lawyer-to-steer-clear-of-philippines-idUSKBN1HK0DS (last visited Apr 13, 2020). [24] Afghanistan, Icc-cpi.int (2020), https://www.icc-cpi.int/afghanistan (last visited May 22, 2020). [25] Basic Facts on Universal Jurisdiction | Human Rights Watch, Human Rights Watch (2020), https://www.hrw.org/news/2009/10/19/basic-facts-universal-jurisdiction (last visited Jun 1, 2020). The Case of the S.S. Lotus, France v. Turkey, Judgment, 7 September 1927, Permanent Court of International Justice (PCIJ), Worldcourts.com (2020), http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm (last visited Jun 1, 2020). [26] Dark Side | Secret Origins of Evidence in US Criminal Cases, Human Rights Watch (2020), https://www.hrw.org/report/2018/01/09/dark-side/secret-origins-evidence-us-criminal-cases (last visited May 22, 2020). [27] Icc-cpi.int (2020), https://www.icc-cpi.int/news/seminarBooks/66%20Recommendations%20Flyer%20(ENG).pdf (last visited May 22, 2020).  (2020), https://legal.un.org/icc/statute/99_corr/9.htm (last visited May 22, 2020). 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