{"id":86,"date":"2020-08-12T15:08:00","date_gmt":"2020-08-12T14:08:00","guid":{"rendered":"https:\/\/blogs.ncl.ac.uk\/nelrn\/?p=86"},"modified":"2020-08-19T13:19:27","modified_gmt":"2020-08-19T12:19:27","slug":"the-iccs-investigation-into-afghanistan-a-watershed-moment-for-the-court-one-can-only-hope","status":"publish","type":"post","link":"https:\/\/blogs.ncl.ac.uk\/nelrn\/2020\/08\/12\/the-iccs-investigation-into-afghanistan-a-watershed-moment-for-the-court-one-can-only-hope\/","title":{"rendered":"The ICC\u2019s investigation into Afghanistan: a watershed moment for the Court? One can only hope."},"content":{"rendered":"\n

Ethan Gren<\/em><\/strong><\/h3>\n\n\n\n
\"\"<\/figure>\n\n\n\n

Introduction<\/em><\/strong><\/p>\n\n\n\n

The US has recently\nauthorised the use of sanctions against the International Criminal Court (ICC) in\nresponse to the authorisation of an investigation into Afghanistan for alleged\ncrimes against humanity and war crimes. Other state parties to the Rome\nStatute, in the form of a collective statement, have condemned these sanctions\nand reaffirmed their support for the Court. This provides ample opportunity to\nreflect on what this might mean for the ICC going forward. Whether this recent\nillustration of state support might constitute a watershed moment of changing\nstate attitudes towards the Court in the future, cannot be predicted with\ncertainty. Indeed, with the presence of potent considerations militating\nagainst such a moment, for example, the increasing tendency for state rhetoric\nto be unaccompanied by meaningful action, and that not all states party to the\nRome Statute have declared their support, perhaps the best we can do is only\nhope for such a moment. A watershed moment would have significant implications\nin terms of boosting the Court\u2019s effectiveness and perceived legitimacy. <\/p>\n\n\n\n

The ICC<\/em><\/strong><\/em><\/p>\n\n\n\n

The ICC was created on\nthe 1st<\/sup> July 2002, by the widespread signing and ratification of its\nfounding treaty, the Rome Statute 1998<\/a>.\nThe ICC is a remarkable achievement; it is the world\u2019s first and permanent\ninternational criminal court designed to try and punish the perpetrators of\nsome of the worst crimes known to humanity. Its jurisdiction extends to\ngenocide, crimes against humanity, war crimes, and crimes of aggression (Rome\nStatute 1998, article 5). Since its inception, the Court has made invaluable\ncontributions to international criminal justice by securing high-prolife\nconvictions, such as the recent conviction of Bosco Ntaganda<\/a>\nfor war crimes and crimes against humanity in the Democratic Republic of Congo.\nThe Court currently has 13 situations under investigation, and 28 ongoing\ncases, with one of its most recent investigations being the primary subject of\nthis blog post, the investigation into Afghanistan for crimes against humanity\nand war crimes. <\/p>\n\n\n\n

The situation in\nAfghanistan <\/em><\/strong><\/em><\/p>\n\n\n\n

On the 5th<\/sup>\nMarch 2020, the Court authorised the current prosecutor, Fatou Bensouda, to\ncommence an investigation into the Islamic\nRepublic of Afghanistan<\/a> for alleged crimes against humanity\nand war crimes committed since May 2003. They include, inter alia<\/em>,\nmurder, extrajudicial killing, cruel treatment, and intentional attacks against\ncivilians,and are alleged to have been perpetrated in the context of\nthe continuous armed conflict between pro-Government forces and anti-Government\nforces, such as Afghanistan military forces and the Taliban. The prosecutor also\nalleges<\/a>\nthat war crimes have been committed by the US military and CIA personnel\nagainst individuals in Afghanistan detention facilities, including torture and\ncruel treatment, rape, and serious infringements of personal dignity. These\nwere allegedly perpetrated in order to extract information from the Taliban\/Al\nQaeda who may have had links or involvement with the 11 September 2001 attacks,\nas well as for information about the group generally such as locations and\nplanned attacks. Hitherto, investigations into possible crimes committed by the\nUS military have been exceedingly difficult because the US it not a party to\nthe Rome Statute. The ICC can exercise jurisdiction in this case because the\nalleged conduct occurred in Afghanistan, a state party. This is a positive development\nitself, in that the Court is continuing to expand its areas of investigation\nand striving to end impunity for these egregious crimes. The US has responded\nin a very hostile manner, through making various threats and imposing sanctions\non the Court. When considering the background context and history between the\nCourt and the US, their belligerent reaction comes as no surprise. <\/p>\n\n\n\n

The US\u2019s sanctions\n<\/em><\/strong><\/em><\/p>\n\n\n\n

It is no state secret\nthat the US is not a fan of the ICC, nor international law more generally.\nBesides not being party to the Rome Statute, they are not party to major\ninternational human rights treaties such as the International Covenant on\nEconomic, Social and Cultural rights, and although they have signed and\nratified the International Covenant on Civil and Political Rights, they have\nrefrained from signing its first optional protocol, which allows individuals to\nmake complaints of violations under this treaty. For the US, safeguarding\nsovereignty is their central concern and any attempts to encroach upon it is\nmet with fierce resistance. The US\u2019s reluctance to join the ICC stems from a\nfear that they will cede jurisdiction to the Court, which will lead to US\nservicemen being prosecuted.[i]<\/a> In particular, a fear\ntheir military personnel might be prosecuted by an unrestrained and\nunaccountable prosecutor for their \u2018anti-terrorism\u2019 campaign post-9\/11 which is\nalleged to include, inter alia<\/em>, illegal acts of torture and airstrikes. <\/p>\n\n\n\n

Consequently, over time, the US has taken active steps to undermine the Court\u2019s 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\u2019s jurisdiction without the US\u2019s consent.[ii]<\/a> This significantly diminishes the Court\u2019s effective functioning in the fight against impunity.[iii]<\/a> In 2018, John Bolton, when he was the US\u2019s national security advisor, stated<\/a>: \u201c[w]e won\u2019t cooperate with the ICC. We will provide no assistance to the ICC. We will let the ICC die on its own.\u201d Likewise, Trump, in addressing the UN, stated<\/a>: \u201cthe ICC has no jurisdiction, no legitimacy, and no authority. We will never surrender America\u2019s sovereignty to an unelected, unaccountable, global bureaucracy.\u201d Last year, as soon as the prosecutor merely signalled her intention to investigate Afghanistan, the US revoked her visa<\/a> to prevent her entering the country. The US warned they were \u201cprepared to take additional steps, including economic sanctions if the ICC does not change it course.\u201d This is exactly what they have done. In response to the Court\u2019s decision to commence the investigation into Afghanistan, Trump authorized<\/a> the \u201cblocking [of] the financial assets of certain ICC staff and [the imposition of] visa restrictions on them and their immediate family members.\u201d Measures of this sort, designed to deter the Court from pursuing its investigation into Afghanistan<\/a>, 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\u2019s historic stance towards the ICC. However, conversely, what is surprising is the reaction by the other state parties to the Rome Statute. <\/p>\n\n\n\n

A humanising\nmoment amidst widespread inhumanity: a watershed moment for the Court? <\/em><\/strong><\/p>\n\n\n\n

The sanctions against the\nCourt fly firmly in the face of justice, but rather than leaving the \u2018naming\nand shaming\u2019 to the likes of NGOs, the President of the Assembly of State\nParties to the Rome Statute, O-Gon Kwon, called upon the state\nparties<\/a> to the ICC to share their condemnation and reaffirm collective\nsupport for the Court. This resulted in 67 state parties to the ICC signing a collective statement<\/a>\nwhich \u201creconfirms [their] unwavering support for the Court as an independent\nand impartial judicial institution.\u201d The statement mentions states are\ncommitted to \u201cuphold and defend the principles and values enshrined in the Rome\nStatute and to preserve its integrity undeterred by any measures or threats\nagainst the Court.\u201d They \u201cwill therefore continue to respect [their]\ncooperation obligations under the Rome Statute\u2026 and call on all States to\nensure full cooperation with the Court for it to carry out its important\nmandate of ensuring justice for the victims of the most serious crimes of\ninternational concern.\u201d This is a refreshing development to witness; amidst the\nwidespread inhumanity that has permeated the conflict in Afghanistan, states\nhave firmly denounced the sanctions taken by the US and reaffirmed their\ncommitment to ending impunity and supporting the Court, a humanising moment. Although,\nwhether this has the potential to constitute a watershed moment for the Court\nis a difficult question to answer. <\/p>\n\n\n\n

Going forward, will\nstates be more supportive of the Court? Will they continue to actively denounce\nactions intended to undermine the Court\u2019s legitimacy and effectiveness? Will\nstates actually<\/em> comply with their obligations under the Rome Statute,\nsuch as extraditing indicted individuals to the Court? (Rome Statute<\/a>,\narticle 89). Will they actively encourage cooperation with the Court? Are\nstates finally going to follow through with their commitment to help \u201cguarantee\nlasting respect for and the enforcement of international justice\u201d? (Rome Statute<\/a>,\npreamble). The collective statement does signal an intention to do so, but a\ndegree of prudence needs to be exercised in not getting too ahead of ourselves.<\/p>\n\n\n\n

There are important\ncountervailing factors to consider when speculating. Firstly, there exists a\nparadox whereby the values underpinning international criminal justice are ones\nwhich the international community claim to agree and endorse, yet\nsimultaneously fail to provide the coercive powers and will to implement.[iv]<\/a> For instance, the Court issued its first arrest warrant for al-Bashir<\/a>,\nformer president of Sudan, in 2009 for charges ranging from crimes against\nhumanity to genocide, but this was ignored by various states in Africa,\nallowing him to travel freely around the African Union for years,[v]<\/a> until his capture by Sudan\u2019s military in 2019<\/a>.\nIndeed, states agree with the ICC in principle, but in practice are not\ndisposed to offer the help and cooperation the Court needs to successfully\nachieve its goals.[vi]<\/a>\nSecondly, and compounding this, only 3 out of the 13 states where an ICC\ninvestigation is currently ongoing have endorsed the statement. Similarly, only\n67 out of the 123 state parties to the Rome Statute have endorsed it. Therefore,\nis this collective statement just mere rhetoric, not widely enough endorsed to\nbe meaningful, or does it signal times of changing attitudes vis-\u00e0-vis the ICC?\nWhilst we cannot conclusively answer that question now, one can hope this is<\/em>\na watershed moment for the Court. Its implications would be important for\nseveral reasons; active state support would furnish the Court with some\nmuch-needed legitimacy, and improve the Court\u2019s effectiveness, in turn, also\nfurthering its legitimacy. <\/p>\n\n\n\n

One can only hope <\/em><\/strong><\/em><\/strong><\/p>\n\n\n\n

Many scholars believe the\nICC to be \u201cliving on borrowed time;\u201d a mere temporary and failed experiment\nwhich is in a constant battle to demonstrate its merit.[vii]<\/a> In large part, this is\nbecause the Court has suffered extensive criticism; they range from accusations\nthat the Court has secured inadequate convictions, is too slow in delivering\njustice, has failed to adequately deter criminals, and is biased towards\nAfrican states. Without going into their merits here, they have damaged the\nCourt\u2019s legitimacy to the point of crisis; the Court is rarely perceived in a\npositive light.[viii]<\/a>\nIf this is a time of changing state attitudes towards the ICC, this would\nlikely have the effect of vesting the Court with some much-needed legitimacy;\nif the Court\u2019s objectives and operations are more readily endorsed and\nsupported, it might be viewed with less scepticism and lament. Similarly, and\ninextricably linked to the following point, a watershed moment would increase\nthe Court\u2019s effectiveness, in turn likely bolstering its legitimacy. <\/p>\n\n\n\n

The ICC has no\nenforcement mechanism of its own; there is no readily available world police\nforce to give effect to its arrest warrants and apprehend indicted subjects. The\nreality is that apprehension is states\u2019 responsibility. As such, the Court\u2019s\neffective functioning is dependent on state cooperation and support. This was\naptly demonstrated in the al-Bashir case whereby the African Union\u2019s reluctance\nto arrest him allowed travel around the African Union uninhibited. Even with\nhis capture, he still has not been surrendered to the Court, illustrating the\nICC is at the mercy of states; without cooperation there can be no convictions.\nThe Court originally ruled against opening an investigation into Afghanistan\ndue to fears that Afghanistan authorities, the Taliban and the US would not\ncooperate. In the absence of state support, the ICC will likely remain to be\nperceived as a weak, ineffective, and illegitimate institution. This is\nprecisely why changing attitudes towards the Court is so important. If states follow\nthrough with their promises made in the statement, this will furnish the Court\nwith some much-needed legitimacy, and help eradicate some of the criticisms\nmentioned above, for instance, helping the Court secure more convictions,\nfurther bolstering its legitimacy. Nevertheless, a note of caution is required\nin taking this development as a given. Rhetoric without results is still the\norder of the day internationally, but this does not mean we cannot hope for\nsuch an occurrence. The ICC provides victims all over the world with hope – \u201chope that no one\nis above the law and that their despair can be salved with justice- that\nsomebody will listen to their tales of horror- that they are not alone.\u201d[ix]<\/a>\nThe least we can do is hope \u2013 hope that this is a watershed moment for the\nCourt, and that states will continue to support the permanent international\ninstitution designed to end impunity for egregious crimes and provide justice\nto victims. <\/p>\n\n\n\n

Ethan Gren\ngraduated from Newcastle Law School in 2020 from the LLB (International Legal\nStudies) and has an avid interest in researching contemporary problems\nfacing both international human rights law and international criminal\nlaw. 
<\/p>\n\n\n\n

\n\n\n\n

[i]<\/a> Dominic McGoldrick, The\nPermanent International Criminal Court: Legal and Policy Issues<\/em> (Hart\nPublishing 2004) 339<\/p>\n\n\n\n

[ii]<\/a> Sean D Murphy, \u2018U.S. Bilateral\nAgreements Relating to the ICC\u2019 (2003) 97(1) The American Journal<\/em><\/p>\n\n\n\n

of\nInternational Law <\/em>200,\n201<\/p>\n\n\n\n

[iii]<\/a> Human Rights News, \u2018United States\nEfforts to Undermine the International Criminal Court: Legal<\/p>\n\n\n\n

Analysis\nof Impunity Agreements\u2019 (Human Rights Watch<\/em>) Available at: https:\/\/www.hrw.org\/legacy\/campaigns\/icc\/docs\/art98analysis.htm<\/a> <\/p>\n\n\n\n

[iv]<\/a> Marina Aksenova, \u2018International\nCriminal Courts and Tribunals\u2019 (2017) 30 LJIL 475, 477<\/p>\n\n\n\n

[v]<\/a> Dawn L Rothe, James Meernik and\nPordis Ingadottir, The Realities of International Criminal Justice<\/em> (Brill\n2013) 154<\/p>\n\n\n\n

[vi]<\/a> Leila Nadya Sadat and S Richard\nCohen, \u2018The New International Criminal Court: An Uneasy Revolution\u2019 (2000)\n88(3) Geo LJ 381, 444<\/p>\n\n\n\n

[vii]<\/a> Frederic Megret, \u2018The Anxieties of\nInternational Criminal Justice\u2019 (2016) 29(1) LJIL 197, 199<\/p>\n\n\n\n

[viii]<\/a>\nMarieke De Hoon, \u2018The Future\nof the International Criminal Court. On Critique, Legalism and Strengthening\nthe ICC\u2019s Legitimacy\u2019 (2017) 17(4) Int CLR 591, 593<\/p>\n\n\n\n

[ix]<\/a> Leila Nadya Sadat, \u2018A Rawlsian\nApproach to International Criminal Justice and the International Criminal\nCourt\u2019 (2010) 19(1) Tulane Journal of International and Comparative Law 1,\n25-26<\/p>\n","protected":false},"excerpt":{"rendered":"

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