US and ICC: Fighting for Justice and the Rule of Law

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Yesterday, the US had threatened to impose sanctions against the International Criminal Court (ICC) if it prosecutes Americans.

The threats were made by the US National Security Adviser John Bolton as he vowed: “to protect our citizens” by all means from what he called an “illegitimate” court. Mr. Bolton’s statement was a reaction to the court’s recent consideration to prosecute US servicemen and women over alleged human rights abuses in Afghanistan, including detainee abuse.

What is the ICC?

International Criminal Court (ICC) was established by a UN treaty in 2002. The court is empowered to investigate and bring to justice individuals responsible for atrocities such as war crimes, genocide, and crimes against humanity. It has successfully investigated war crimes, genocide and other atrocities committed in countries like the former Yugoslavia, Kosovo, Ivory Coast, Liberia, the Central African Republic, Darfur amongst others. The prosecutions had led to the indictments, arrests, convictions or imprisonment of many alleged war criminals amongst them, Omar al-Bashir, Slobodan Milosevic, Saif al-Islam Gaddafi, Joseph Kony, Ratko Mladic, Radovan Karadzic etc. The jurisdiction of the court has been ratified by 123 countries. However, some countries – mostly undemocratic nations – like China, Russia, Iraq, Libya, Qatar, and Yemen did not want to be a signatory to the ICC. Furthermore, other more democratic countries like the United States, Israel, and India have also refused to recognize the court.  The ICC is not without controversies either. Some, especially those in the Third World countries, have accused the court of selective prosecution. They argue that the court, with Dr. Fatou Bensouda from the Gambia, as its Chief Prosecutor, focuses its prosecution mainly on Africans; an accusation the court vehemently denied, despite that the overwhelming statistics show otherwise. However, according to the UN treaty which established the ICC in 2002, the court only intervenes when national authorities cannot or will not prosecute a case. Furthermore, the ICC cannot prosecute individuals, whose nations are not a signatory to the court. However, the ICC has jurisdiction to prosecute crimes committed within the territorial integrity of an ICC member country, even though the crimes may have been committed by a citizen of a non-signatory country. It is on this basis that the ICC is contemplating opening an investigation against the Americans over their roles in Afghanistan. Afghanistan is amongst the countries that ratified the Rome Statute of the International Criminal Court.

 US cooperation with the ICC

US has been one of the opponents of the ICC. Some members of the US government had argued that while the country acts as a moral authority and contributes to the world security, it will be unfair that its military personnel will be subjected to prosecution in the process of trying to achieve this noble objective. Yet others have argued that the rule of law is meant for everyone irrespective of the country and duty. U.S. President Bill Clinton originally signed the Rome Statute in 2000. Under President George W. Bush’s Administration, the US notified the U.N. Secretary-General on May 6, 2002, that the country would no longer ratify the Rome Statute. The Obama administration came close to ratifying the Rome Statute by sending an observer to the ICC. It voiced its willingness to cooperate with the Assembly of States Parties of the ICC. According to the then Secretary of State Hillary Clinton, during her response to a question from the Senate Foreign Relations Committee,  the U.S. will end its “hostility” towards the court. However, like the previous US administrations, the Obama government did not ratify the ICC.

Although the US is among some few countries that are not a signatory to the court, Americans had in the past indirectly, and some would say, actively supported the court, mostly when the interest of the US was at stake. During her first address to the Security Council, the former U.S Ambassador to the U.N Susan Rice expressed U.S. support for the court’s investigation in Sudan. The previous US government had supported the ICC. The US plays a very pivotal role in the arrest of the former President of the then Yugoslavia, Slobodan Milosevic, who died on March 11, 2006, in the ICC prison in Den Haag. The same can be said about the former President of Liberia, Charles Taylor, who was sentenced to 50 years in prison by the ICC court. Now that the ICC is considering opening an investigation in Afghanistan, the US government has vowed not to cooperate with the International criminal court.

Why is the US against the investigation in Afghanistan?

Definitely, the intention of the ICC Chief prosecutor Fatou Bensouda to investigate alleged war crimes in Afghanistan would mean investigating amongst others, the roles of the US troops and intelligence officials in Afghanistan. It is alleged in the 2016 ICC report that the US military and the CIA officials had committed torture at secret detention sites in Afghanistan. The same report equally alleged that both the Taliban and the Afghan government had a case to answer. The US is also angry over the Palestinian move to bring Israel, the US closest ally,  before the ICC, following alleged human rights abuses in the occupied West Bank and Gaza. Recently, the US had closed the Palestinians’ diplomatic mission in Washington and cut funding to the United Nations program that administers aids to millions of Palestinian refugees. But those are not the only cards on the US table.

American Service Members Protection Act

According to the American Service-Members’ Protection Act (ASPA), which was passed in the US Congress in 2002, the President of the US is, amongst others, authorised to “use all means necessary and appropriate, including military force and appropriate to bring about the release of any U.S. or allied personnel being detained by, on behalf of, or at the request of the International Criminal Court.” The ASPA equally prohibits the United States from providing military assistance to countries which are a signatory to the ICC. However, the NATO member states and major non-NATO allies are excepted from the military assistance clause in the ASPA. Interestingly, the ASPA was later modified to permit the US cooperation with the ICC when dealing with “U.S. enemies.” Opponents have argued that the ASPA is meant to protect the interests of the USA and its military personnel from prosecution. Furthermore, others fear that the US antagonism towards the ICC could encourage impunity amongst the US military personnel. The US dismissed the allegations and insisted that they can prosecute any alleged human rights abuses or other crimes committed by the US personnel in the US courts, which the US argued, are above any other court. Some opponents of the ICC both in the US and elsewhere have retaliated that cooperating with the ICC would give the court more power, authority and influence over their countries through the persecution of their citizens. Such power of the International Criminal Court, they argue, would undermine the sovereignty of their countries.

Double Standard?

However, the US had in the past cited other international laws as a legal cover for their actions.  The US has repeatedly defended one of the clauses in the jurisdiction of the North Atlantic Treaty Organisation (NATO), which says that any attack on the NATO member is indirectly an attack on its other members. This law gives the NATO members, militarily headed by the USA, the legal backing to attack and deter aggression from a non-NATO member. Furthermore, the US had little problems involving the NATO in cases outside its jurisdiction. A typical case was the use of the NATO in 1995 to attack and neutralize the power of President Slobodan Milosevic’s army during the Yugoslavia war. That was the NATO’s first air campaign since it was formed. The attack, dubbed the Operation Deliberate Force, targeted the Army of Republika Srpska, which was accused of posing a significant danger to the UN safe areas. Although the NATO attack led to the end of the war, signing of the Dayton Accords and the arrest of the former strongman of Yugoslavia, Mr. Milosevic, opponents called the use of NATO a breach of the International law. The US war in Iraq under President George W. Bush which was fought without the approval from the UN Security Council equally made others question the US commitment to and respect for the (international) rule of law.

While the US has presented itself as the champion of the human rights and democracy around the world and have indeed committed billions of dollars and sacrificed its military personnel to achieve this objective, some have wondered why the same US is antagonistic against the ICC, a UN established court responsible for the prevention of war crimes and other human rights atrocities committed by individuals. Others find it ironic and perhaps a double standard on the part of the US that the country does not recognize the jurisdiction of the ICC yet, Americans are willing to cooperate with the court when dealing with U.S enemies.

So far, neither the ICC nor the US has shown any sign of backing down from its position. Such positions raise many questions. Why is the US so critical about the ICC and vehemently against any attempt by the court to try its military personnel? Is the ICC biased? Could it be that the US does not believe in the fairness or legal capabilities of the International Criminal Court judges? As the pillar of democracy and the rule of law, must the US encourage its citizens to play by the rules? Could it be that the US fears that its servicemen and women could be exposed to legal hostilities? Is the US hostility towards the ICC borne out of power and dominance and the US perception of itself as the World leader? Whatever the case may be, the conflict the fight for justice and the rule of law is at stake.

Perhaps the US could show the world that it truly supports justice and the rule of law by quickly allowing any accused citizen (the US or non-US) be impartially prosecuted in the court of law – whether in the USA or Den Haag. At the end of the day, it is all about fighting for justice and the rule of law, punishing the culprits and assuring the victims that their plights have not forgotten or neglected. This is what the law is all about.

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