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Wednesday, August 12, 2020

The US sanctions against International Criminal Court: How things got here

The International Criminal Court (ICC) was established as a court of last resort to prosecute offences that would otherwise go unpunished. It has jurisdiction over four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

By: Explained Desk | New Delhi | Updated: June 19, 2020 9:24:26 pm
US protests, George floyd protests, black lives matter, antifa, Donald trump on antifa, what is antifa, antifa terrorism US officials have also blamed Russia for manipulating the ICC in its favour. (File photo)

The turbulent relationship between the US and the International Criminal Court (ICC) further exacerbated this week, after President Donald Trump authorised sanctions against ICC officials involved in investigations into possible war crimes by US troops or those of its allies.

The Trump administration, which has long considered the international law forum a threat to US sovereignty, announced the strict punitive measures that Washington generally reserves for use against terror groups and those accused of abusing human rights.

Secretary of State Mike Pompeo, the country’s top diplomat, called the 123 nations-strong tribunal a “kangaroo court”. Without providing evidence, Attorney-General William Barr said that the US Justice Department had “received substantial credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels in the office of the prosecutor.”

US officials have also blamed Russia for manipulating the ICC in its favour.

The International Criminal Court (ICC)

The ICC, a permanent judicial body based at The Hague in the Netherlands, was created by the 1998 Rome Statute of the International Criminal Court (its founding and governing document), and began functioning on 1 July 2002 when the Statute came into force.

The forum was established as a court of last resort to prosecute offences that would otherwise go unpunished, and has jurisdiction over four main crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. 123 nations are States Parties to the Rome Statute and recognise the ICC’s authority; the notable exceptions being the US, China, Russia, and India.

Unlike the International Court of Justice (ICJ), the ICC is not part of the United Nations system, with the UN-ICC relationship being governed by a separate agreement. The ICJ, which is among the UN’s 6 principal organs, mainly hears disputes between nations. The ICC, on the other hand, prosecutes individuals– its authority extending to offences committed in a member state or by a national of such a state.

The ICC has been criticised for not pursuing investigations in Western countries (all 4 of its guilty verdicts pronounced so far are in trials from Africa), as well as for working inefficiently. Last year, the court ordered an independent expert review of its own functioning to address these concerns.

Washington and the ICC

The Clinton administration (1993-2001) was involved in Rome Statute negotiations, and signed the document in 2000. However, the next president, George W. Bush in 2002 had the US “unsign” the Statute and signed into law the American Service-Members’ Protection Act to protect US nationals from the ICC’s reach.

Its differences with the ICC notwithstanding, Washington adopted a positive approach towards the forum during several instances– in 2005 it did not veto a UN Security Council request to the ICC to investigate crimes during the Darfur crisis and in 2011 voted for Libya’s referral to the court. The US also provided critical support in transferring suspects from Africa to the ICC for trial.

Since the election of President Donald Trump, relations have again soured, with Trump declaring at the UN General Assembly in 2018, “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.”

In 2019, much to Washington’s chagrin, the ICC’s chief prosecutor Fatou Bensouda asked for a formal probe into alleged atrocities committed during the Afghanistan War between 2003 and 2014– leading to possible indictments of US military and CIA officials. The Trump administration reacted by revoking the Gambian lawyer’s US visa. In March this year, ICC judges approved Bensouda’s request.

The latest upheaval

On Thursday, Washington broadened the visa restrictions on ICC officials directly involved in probes against its nationals or those of its allies, and anyone who has “materially assisted, sponsored, or provided financial, material, or technological support” to these officials. The restrictions also extend to the officials’ family members. Pompeo said that economic sanctions would be decided on a case-by-case basis.

A day later, the ICC reacted by declaring support for its officials, and called Washington’s move an “unacceptable attempt to interfere with the rule of law”. “An attack on the ICC also represents an attack against the interests of victims of atrocity crimes, for many of whom the court represents the last hope for justice,” the court said in a statement.

Israel welcomed the US decision, with prime minister Benjamin Netanyahu accusing the ICC of fabricating “outlandish charges” against his country.

Backlash against Washington

Except for Israel, many came out in support of the Hague-based tribunal.

The United Nations said that it had “taken note with concern” about reports of the US order. The European Union’s foreign policy chief, Josep Borrell, called the US decision “very bad news” and a “matter of serious concern”.

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Germany and France also expressed their displeasure. In a tweet on Friday, the Dutch foreign minister Stef Blok called the ICC “crucial in the fight against impunity and in upholding international rule of law,” and said that he was “very disturbed by the United States’ measures” against the ICC.

The international NGO Human Rights Watch said, “Asset freezes and travel bans are for human rights violators, not prosecutors and judges seeking justice for victims… In penalising war crimes investigators, the Trump administration is openly siding with those who commit and cover up human rights abuses.”

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