Current Posture of ICC: War Crimes in Countries after Countries (Part-2) | 2018-09-19 |

Current Posture of ICC: War Crimes in Countries after Countries (Part-2)

Anwar A Khan     19 September, 2018 12:00 AM printer

The June 2012 appointment of an African woman, Fatou Bensouda, the former Minister of Justice for Gambia and Deputy Chief Prosecutor of the ICC, to be the new ICC Chief Prosecutor reinforces perceptions of Afrocentrism, even while it counters African charges of exclusion from the ICC’s prosecutorial process. Since the ICC's inception in 2000, the independent power of the Office of the Prosecutor (OTP) to initiate his/her investigations has been one of the most contested issues in international law. Articles 13(c), 15 and 53(1) of the Rome Statute define the prosecutorial power of proprio motu, which grants the OTP the independent ability to determine whether there is reasonable basis to proceed and whether a crime within the jurisdiction of the Court has been committed, whether the case is admissible under Article 17 (complementarity and gravity) and whether an investigation would not be in the interests of justice.

Critics and supporters of proprio motu alike agree that this threshold for investigation is vague and subjective, opening the door to the possibility of the ICC's being wielded for individual political motives. Western powers have articulated fears that the OTP would investigate their citizens, effectively circumventing those countries' veto powers in the UN Security Council and their ability to recommend domestic cases themselves. Ultimately, proprio motu has only been used once in the history of the ICC, in the investigation of Kenyan officials inciting election violence in 2008. The Prosecutor at the time, Moreno Ocampo, cited the fact that the six officials were protected by government impunity and corruption rackets in Kenya, and would not likely be properly tried within Kenya. Regardless of its justification, the OTP's first exercise of proprio motu prompted worldwide backlash and revived debate about this substantial prosecutorial power.

In the US, the perception of the ICC is irreversibly tied to beliefs regarding the latter's multilateralism, an increasingly politicized and dictated foreign policy doctrine. While President Clinton drove international peacekeeping efforts into Somalia, the Balkans and elsewhere, the Bush administration’s decision to engage neo-conservative policies of unilateral aggression and pre-emption in the name of national security directly reversed and undermined the emerging norm of multilateralism and shared global peace-building.

By 2008, the US government pendulum had swung back toward multilateralism, and the ICC regained support; since then, the Obama Administration has articulated and generally employed a multilateral approach to foreign conflicts and international justice. When the Court sought to indict Libya’s Muammar Qaddafi in 2005, the US abstained. Four years later, this renewed commitment to multilateralism was evidenced not only by the US's vote to indict Qaddafi, but by their active participation in the joint NATO mission in Libya. Furthermore, both the restraint of unilateral force in conflicts in Syria and Iran, and the favouring of regionally-led stabilisation operations in countries like Uganda and Somalia, signal a new paradigm for American enforcement of international justice. While these actions under the Obama administration’s first term have not rendered the US a full and equal partner with ICC member states, the prioritisation of a collaborative response to atrocities marks a shift in global perspective within the White House, and bodes well for the future of the US's relationship with the ICC.

America has said it would refuse to cooperate in any way with the International Criminal Court in The Hague if it carries out a prospective investigation into allegations of war crimes by US military and intelligence personnel in Afghanistan. At the same time, Bolton announced that the US State Department is shutting down a Palestinian Liberation Organisation office in Washington in response to Palestinian efforts to have the court prosecute Israeli actions and because the Palestinians have rejected direct negotiations with the Jewish state on a peace treaty.

The Trump administration initially announced it would close the PLO office last year for its efforts to get the ICC to investigate Israel, but later reversed its decision. Palestinian President Mahmoud Abbas has asked the international court to investigate and prosecute Israeli officials for their involvement in settlement activities and aggressions against their people. Palestinian official Saeb Erekat said the Trump administration move to close the office will not deter his government from going to the ICC.  "The rights of the Palestinian people are not for sale, that we will not succumb to US threats and bullying," he has said.

Bolton called the ICC fundamentally illegitimate and an assault on the constitutional rights of the United States. He said if the ICC carries out the investigation of US military actions in Afghanistan, the US would ban its judges and prosecutors from entering the country, freeze any funds they have in US financial institutions, and attempt to prosecute them in US courts.

The ICC as reported recently in the international media that it may soon formally announce an investigation of allegations of misconduct by members of the US military and the Central Intelligence Agency. The ICC is designed to be permanent and independent of national governments as it investigated war crimes, crimes against humanity and genocide. But Bolton has said the ICC has been ineffective and unaccountable. But look at America’s National Security Adviser  John Bolton’s temerity; he has called the American war criminals as  "American patriots." Bensouda said her office "has determined that there are no substantial reasons to believe that the opening of an investigation would not serve the interests of justice, taking into account the gravity of the crimes and the interests of victims."

Amnesty International official Adotei Akwei immediately rebuked the US position, saying its rejection of the ICC's legitimacy is an attack on millions of victims and survivors who have experienced the most serious crimes under international law and undermines decades of groundbreaking work by the international community to advance justice. Akwei has said the US should sign the Rome agreement creating the court and support — not impede — its investigations. The ICC prosecutes the most serious crimes under international law — genocide, war crimes, crimes against humanity, and the crime of aggression. Akwei has also added, “Resuming attacks against the court sends a dangerous signal that the United States is hostile to human rights and the rule of law."

The ICC Chief Prosecutor recently announced her decision to request an authorisation to open a formal investigation into possible international crimes committed in connection with the conflict in Afghanistan and elsewhere in the world. The outcome of her preliminary examination was long-awaited and expected to be significant because an investigation into the Afghanistan situation would cover all parties involved – that is, not only local actors but also the international coalition, including the US and US nationals would come under the jurisdiction of the Court if they committed crimes in Afghanistan or in any other State party to the Rome Statute.

The Chief Prosecutor’s choice to subject some aspects of the Afghan conflict to judicial scrutiny despite the pressures deserves to be praised as an act of bravery. Fatou Bensouda intends to prosecute acts of torture committed in CIA detention facilities located in Europe, in connection with the armed conflict in Afghanistan, as war crimes. If she does, the Afghanistan investigation may help highlight many overlooked aspects of war crimes, political killings… committed by CIA and American Establishments for more than 7 decades across the globe including the brutal murder of Bangladesh’s Founding Father Bangabandhu Sheikh Mujibur Rahman.

In its public announcement, the ICC Chief Prosecutor has indicated that she will focus, in conformity with the ICC’s jurisdiction, solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.

War crimes closely linked to the situation in Afghanistan, but committed elsewhere like Iraq, Libya, Syria…allegations of torture and other forms of ill-treatment committed as part of the infamous CIA’s extraordinary rendition programme. The programme implicated the rendition, detention and interrogation of terrorism suspects, with the support of at least 54 States. Some of them, like Poland, Lithuania and Romania, hosted CIA-run secret facilities where detainees were allegedly ill-treated. These three States are parties to the Rome Statute, and as a result, the ICC’s jurisdiction extends to their territory. In her 2016 Preliminary Examinations report, the Chief Prosecutor has already mentioned her determination that there is a reasonable basis to believe that: “War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.” We should hail the endeavours of ICC in The Hague, Holland and wish it a grand success!


The writer is a senior citizen and writes about politics, political and humanist figures and international affairs.