Issues of democracy and the rule of law as the US denies visas to the ICC Investigators

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The United States has often portrayed itself as the pillar of democracy and the rule of law. For long, this view of the US had been the impression of many around the world when they talked about the USA. But that positive impression seems to have come under doubts of recent. Sadly, the decision of the US not to issue visas to staff of the International Criminal Court (ICC) investigating abuses allegedly committed by U.S. troops in Afghanistan does more than put the US’ democratic credentials under serious scrutiny; it equally questions the country’s moral right to portray itself as the pillar of democracy and the rule of law.

According to the US Secretary of State Mike Pompeo last Friday, the country will deny a visa to the ICC investigators looking into alleged human rights abuses committed by the US soldiers in Afghanistan or troops of the US allies such as Israel.

“We are determined to protect the American and allied military and civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation. We feared that the court could eventually pursue politically motivated prosecutions of Americans,” Mr. Pompeo said.

The United States is not a signatory to the ICC, however, the President Clinton administration signed a statute creating the body in 2002. Apart from just 23 countries (including the USA and other less democratic countries like China, Iraq, Libya, India, etc.), more than 120 countries recognize the jurisdiction of the ICC. According to the ICC jurisdiction, the court cannot persecute atrocities committed by a non-member. However, the court has the power and mandate to investigate crimes committed by a non-member on an ICC member state’s soil, if the member state referred the abuse to the court. It is on this ground that the ICC wants to investigate the alleged crimes the US soldiers may have committed in Afghanistan, which is a member of the ICC. Furthermore, the Palestinian Authority has equally asked the ICC to investigate an alleged crime it claimed Israeli committed in the West Bank and Gaza.

Interestingly, until 2017 when the ICC prosecutor requested approval to start investigating the situation in Afghanistan, the US had given tactical (if not active) support to the court, albeit not recognizing its jurisdiction. From the arrest and prosecution of Slobodan Milošević, Radovan Karadžić to Ratko Mladić, the USA had rendered its support and sometimes, played an active role in helping the ICC achieve its objectives. Nor did it stop the USA and its allies to “redefine” the role of the NATO and effectively turning the organization from stabilization to military force in Yugoslavia, Libya etc. Therefore, for the US to label the ICC investigation as “a threat to national security,” one wonders why the country tactically supports the organization, it sees as “a threat to national security,” to carry out the court’s mandate by arresting the ICC’s alleged suspects. More than that, with the US’ refusal of grant visas to the ICC investigation or not to support an investigation of the US’ allies like Israel, many questions have come to mind. Is the US, through its action, indeed strengthening democracy, the rule of law and equality before the law, which it has for long, tried to implant around the world or does it encourage impunity and lawlessness, which may put the perception of the US increasingly under the scrutiny of recent? For a country that is built around the rule of law and democracy, one would have expected accountability as the norm; but that accountability has been seriously undermined by the decision of the US not to grant visas to the ICC investigators. Such a stand could lead some critics to wonder if the US has any skeleton in its cupboard. Since when has equality before the law, one of the most important elements of democracy and the rule of law, been thrown into the dustbin history by such a respectable nation as the USA?  Are the (international) laws made for the poor only? Recently, many, most of them, Africans have voiced their frustrations and wondered if the ICC is set up for the persecution of the suspects from poor countries only.

Opponents have often accused the ICC of being a tool or extension of the “Western neo-colonialism” because of the court’s record of convicts, who are mostly Africans. That makes many question the court’s impartiality. Unfortunately, with the refusal of the US to grant visas to the ICC investigators to carry out their work and investigate alleged human rights abuses, in which Americans soldiers may have been involved in Afghanistan or investigation of troops of the US allies such as Israel, the US is ironically, giving credit to such a criticism that some individuals and countries are above the law.

As the champion of democracy and the rule of law, will the US prove its critics wrong by upholding the fundamental pillar of its country?