Ethan Gren
Introduction
The US has recently authorised the use of sanctions against the International Criminal Court (ICC) in response to the authorisation of an investigation into Afghanistan for alleged crimes against humanity and war crimes. Other state parties to the Rome Statute, in the form of a collective statement, have condemned these sanctions and reaffirmed their support for the Court. This provides ample opportunity to reflect on what this might mean for the ICC going forward. Whether this recent illustration of state support might constitute a watershed moment of changing state attitudes towards the Court in the future, cannot be predicted with certainty. Indeed, with the presence of potent considerations militating against such a moment, for example, the increasing tendency for state rhetoric to be unaccompanied by meaningful action, and that not all states party to the Rome Statute have declared their support, perhaps the best we can do is only hope for such a moment. A watershed moment would have significant implications in terms of boosting the Court’s effectiveness and perceived legitimacy.
The ICC
The ICC was created on the 1st July 2002, by the widespread signing and ratification of its founding treaty, the Rome Statute 1998. The ICC is a remarkable achievement; it is the world’s first and permanent international criminal court designed to try and punish the perpetrators of some of the worst crimes known to humanity. Its jurisdiction extends to genocide, crimes against humanity, war crimes, and crimes of aggression (Rome Statute 1998, article 5). Since its inception, the Court has made invaluable contributions to international criminal justice by securing high-prolife convictions, such as the recent conviction of Bosco Ntaganda for war crimes and crimes against humanity in the Democratic Republic of Congo. The Court currently has 13 situations under investigation, and 28 ongoing cases, with one of its most recent investigations being the primary subject of this blog post, the investigation into Afghanistan for crimes against humanity and war crimes.
The situation in Afghanistan
On the 5th March 2020, the Court authorised the current prosecutor, Fatou Bensouda, to commence an investigation into the Islamic Republic of Afghanistan for alleged crimes against humanity and war crimes committed since May 2003. They include, inter alia, murder, extrajudicial killing, cruel treatment, and intentional attacks against civilians,and are alleged to have been perpetrated in the context of the continuous armed conflict between pro-Government forces and anti-Government forces, such as Afghanistan military forces and the Taliban. The prosecutor also alleges that war crimes have been committed by the US military and CIA personnel against individuals in Afghanistan detention facilities, including torture and cruel treatment, rape, and serious infringements of personal dignity. These were allegedly perpetrated in order to extract information from the Taliban/Al Qaeda who may have had links or involvement with the 11 September 2001 attacks, as well as for information about the group generally such as locations and planned attacks. Hitherto, investigations into possible crimes committed by the US military have been exceedingly difficult because the US it not a party to the Rome Statute. The ICC can exercise jurisdiction in this case because the alleged conduct occurred in Afghanistan, a state party. This is a positive development itself, in that the Court is continuing to expand its areas of investigation and striving to end impunity for these egregious crimes. The US has responded in a very hostile manner, through making various threats and imposing sanctions on the Court. When considering the background context and history between the Court and the US, their belligerent reaction comes as no surprise.
The US’s sanctions
It is no state secret that the US is not a fan of the ICC, nor international law more generally. Besides not being party to the Rome Statute, they are not party to major international human rights treaties such as the International Covenant on Economic, Social and Cultural rights, and although they have signed and ratified the International Covenant on Civil and Political Rights, they have refrained from signing its first optional protocol, which allows individuals to make complaints of violations under this treaty. For the US, safeguarding sovereignty is their central concern and any attempts to encroach upon it is met with fierce resistance. The US’s reluctance to join the ICC stems from a fear that they will cede jurisdiction to the Court, which will lead to US servicemen being prosecuted.[i] In particular, a fear their military personnel might be prosecuted by an unrestrained and unaccountable prosecutor for their ‘anti-terrorism’ campaign post-9/11 which is alleged to include, inter alia, illegal acts of torture and airstrikes.
Consequently, over time, the US has taken active steps to undermine the Court’s effectiveness and legitimacy. For example, the US has concluded over ninety bilateral agreements with other states agreeing not to transfer to the Court US persons who might have committed crimes under the Court’s jurisdiction without the US’s consent.[ii] This significantly diminishes the Court’s effective functioning in the fight against impunity.[iii] In 2018, John Bolton, when he was the US’s national security advisor, stated: “[w]e won’t cooperate with the ICC. We will provide no assistance to the ICC. We will let the ICC die on its own.” Likewise, Trump, in addressing the UN, stated: “the ICC has no jurisdiction, no legitimacy, and no authority. We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.” Last year, as soon as the prosecutor merely signalled her intention to investigate Afghanistan, the US revoked her visa to prevent her entering the country. The US warned they were “prepared to take additional steps, including economic sanctions if the ICC does not change it course.” This is exactly what they have done. In response to the Court’s decision to commence the investigation into Afghanistan, Trump authorized the “blocking [of] the financial assets of certain ICC staff and [the imposition of] visa restrictions on them and their immediate family members.” Measures of this sort, designed to deter the Court from pursuing its investigation into Afghanistan, are tools normally reserved for perpetrators of international crimes and human rights violations, not individuals working for an institution seeking to hold them accountable. These sanctions are unsurprising when considered in the light of the US’s historic stance towards the ICC. However, conversely, what is surprising is the reaction by the other state parties to the Rome Statute.
A humanising moment amidst widespread inhumanity: a watershed moment for the Court?
The sanctions against the Court fly firmly in the face of justice, but rather than leaving the ‘naming and shaming’ to the likes of NGOs, the President of the Assembly of State Parties to the Rome Statute, O-Gon Kwon, called upon the state parties to the ICC to share their condemnation and reaffirm collective support for the Court. This resulted in 67 state parties to the ICC signing a collective statement which “reconfirms [their] unwavering support for the Court as an independent and impartial judicial institution.” The statement mentions states are committed to “uphold and defend the principles and values enshrined in the Rome Statute and to preserve its integrity undeterred by any measures or threats against the Court.” They “will therefore continue to respect [their] cooperation obligations under the Rome Statute… and call on all States to ensure full cooperation with the Court for it to carry out its important mandate of ensuring justice for the victims of the most serious crimes of international concern.” This is a refreshing development to witness; amidst the widespread inhumanity that has permeated the conflict in Afghanistan, states have firmly denounced the sanctions taken by the US and reaffirmed their commitment to ending impunity and supporting the Court, a humanising moment. Although, whether this has the potential to constitute a watershed moment for the Court is a difficult question to answer.
Going forward, will states be more supportive of the Court? Will they continue to actively denounce actions intended to undermine the Court’s legitimacy and effectiveness? Will states actually comply with their obligations under the Rome Statute, such as extraditing indicted individuals to the Court? (Rome Statute, article 89). Will they actively encourage cooperation with the Court? Are states finally going to follow through with their commitment to help “guarantee lasting respect for and the enforcement of international justice”? (Rome Statute, preamble). The collective statement does signal an intention to do so, but a degree of prudence needs to be exercised in not getting too ahead of ourselves.
There are important countervailing factors to consider when speculating. Firstly, there exists a paradox whereby the values underpinning international criminal justice are ones which the international community claim to agree and endorse, yet simultaneously fail to provide the coercive powers and will to implement.[iv] For instance, the Court issued its first arrest warrant for al-Bashir, former president of Sudan, in 2009 for charges ranging from crimes against humanity to genocide, but this was ignored by various states in Africa, allowing him to travel freely around the African Union for years,[v] until his capture by Sudan’s military in 2019. Indeed, states agree with the ICC in principle, but in practice are not disposed to offer the help and cooperation the Court needs to successfully achieve its goals.[vi] Secondly, and compounding this, only 3 out of the 13 states where an ICC investigation is currently ongoing have endorsed the statement. Similarly, only 67 out of the 123 state parties to the Rome Statute have endorsed it. Therefore, is this collective statement just mere rhetoric, not widely enough endorsed to be meaningful, or does it signal times of changing attitudes vis-à-vis the ICC? Whilst we cannot conclusively answer that question now, one can hope this is a watershed moment for the Court. Its implications would be important for several reasons; active state support would furnish the Court with some much-needed legitimacy, and improve the Court’s effectiveness, in turn, also furthering its legitimacy.
One can only hope
Many scholars believe the ICC to be “living on borrowed time;” a mere temporary and failed experiment which is in a constant battle to demonstrate its merit.[vii] In large part, this is because the Court has suffered extensive criticism; they range from accusations that the Court has secured inadequate convictions, is too slow in delivering justice, has failed to adequately deter criminals, and is biased towards African states. Without going into their merits here, they have damaged the Court’s legitimacy to the point of crisis; the Court is rarely perceived in a positive light.[viii] If this is a time of changing state attitudes towards the ICC, this would likely have the effect of vesting the Court with some much-needed legitimacy; if the Court’s objectives and operations are more readily endorsed and supported, it might be viewed with less scepticism and lament. Similarly, and inextricably linked to the following point, a watershed moment would increase the Court’s effectiveness, in turn likely bolstering its legitimacy.
The ICC has no enforcement mechanism of its own; there is no readily available world police force to give effect to its arrest warrants and apprehend indicted subjects. The reality is that apprehension is states’ responsibility. As such, the Court’s effective functioning is dependent on state cooperation and support. This was aptly demonstrated in the al-Bashir case whereby the African Union’s reluctance to arrest him allowed travel around the African Union uninhibited. Even with his capture, he still has not been surrendered to the Court, illustrating the ICC is at the mercy of states; without cooperation there can be no convictions. The Court originally ruled against opening an investigation into Afghanistan due to fears that Afghanistan authorities, the Taliban and the US would not cooperate. In the absence of state support, the ICC will likely remain to be perceived as a weak, ineffective, and illegitimate institution. This is precisely why changing attitudes towards the Court is so important. If states follow through with their promises made in the statement, this will furnish the Court with some much-needed legitimacy, and help eradicate some of the criticisms mentioned above, for instance, helping the Court secure more convictions, further bolstering its legitimacy. Nevertheless, a note of caution is required in taking this development as a given. Rhetoric without results is still the order of the day internationally, but this does not mean we cannot hope for such an occurrence. The ICC provides victims all over the world with hope – “hope that no one is above the law and that their despair can be salved with justice- that somebody will listen to their tales of horror- that they are not alone.”[ix] The least we can do is hope – hope that this is a watershed moment for the Court, and that states will continue to support the permanent international institution designed to end impunity for egregious crimes and provide justice to victims.
Ethan Gren
graduated from Newcastle Law School in 2020 from the LLB (International Legal
Studies) and has an avid interest in researching contemporary problems
facing both international human rights law and international criminal
law.
[i] Dominic McGoldrick, The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing 2004) 339
[ii] Sean D Murphy, ‘U.S. Bilateral Agreements Relating to the ICC’ (2003) 97(1) The American Journal
of International Law 200, 201
[iii] Human Rights News, ‘United States Efforts to Undermine the International Criminal Court: Legal
Analysis of Impunity Agreements’ (Human Rights Watch) Available at: https://www.hrw.org/legacy/campaigns/icc/docs/art98analysis.htm
[iv] Marina Aksenova, ‘International Criminal Courts and Tribunals’ (2017) 30 LJIL 475, 477
[v] Dawn L Rothe, James Meernik and Pordis Ingadottir, The Realities of International Criminal Justice (Brill 2013) 154
[vi] Leila Nadya Sadat and S Richard Cohen, ‘The New International Criminal Court: An Uneasy Revolution’ (2000) 88(3) Geo LJ 381, 444
[vii] Frederic Megret, ‘The Anxieties of International Criminal Justice’ (2016) 29(1) LJIL 197, 199
[viii] Marieke De Hoon, ‘The Future of the International Criminal Court. On Critique, Legalism and Strengthening the ICC’s Legitimacy’ (2017) 17(4) Int CLR 591, 593
[ix] Leila Nadya Sadat, ‘A Rawlsian Approach to International Criminal Justice and the International Criminal Court’ (2010) 19(1) Tulane Journal of International and Comparative Law 1, 25-26