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

Anwar A Khan

19th September, 2018 09:58:24 printer

The International Criminal Court (ICC) in The Hague aims to promote not only justice, but also peace. It has been widely criticised for doing neither, yet it has to contend with some severe structural and political difficulties: it has limited resources, it faces institutional restrictions, it is manipulated by states, and it is criticised for an alleged selectivity in the way it dispenses justice. However, the ICC could contribute significantly to the promotion of international justice and peace, and have a major impact on the prevention of crime, since its prosecutions represent a clear threat to highly placed individuals who commit serious crimes.

It should be noted that as of 2012 there are eight situations under investigation by the ICC’s Office of the Prosecutor (OTP), including six of which are outside of Africa: Afghanistan, Colombia, Georgia, Honduras, the Republic of Korea, and Palestine. Furthermore, the OTP previously pursued crimes in Iraq and Venezuela that did not lead to any formal investigations. Arguably the strongest case for the charges of Afrocentrism described above is the simple fact that a high proportion of Rome Statute signatories are African states, almost all of which have ratified the Statute; the ICC lacks legal authority over many sites of recent egregious crimes, including Sri Lanka, Russia, China, the US, and Iran, which have not ratified it. In these cases, the ICC has no jurisdiction to try war criminals, even if the UN Security Council were to refer the cases.

Looking into the future – and acknowledging that the prospect of an indictment of CIA operatives is not distant, to say the least – if these crimes are ever to be prosecuted by the ICC. Indeed, the ICC has territorial jurisdiction in Poland, Lithuania and Romania. So, the American misdeed-mongers’ acts come under the material jurisdiction of the Court and qualify as war crimes. Because war crimes are serious violations of IHL under the Rome Statute and customary international law, this question preliminarily depends on whether IHL applied to these acts.

War crime courts have usually followed a two-prong inquiry to answer this question: 1) is there an armed conflict and 2) is there a nexus between the conduct and this armed conflict? That a non-international armed conflict (NIAC) involving the US (or two if the Taliban and Al-Qaeda are considered two distinct parties) existed at the time of the alleged acts of ill-treatment is beyond reasonable doubt. In addition, based on the nexus jurisprudence of the ICC and other international and national war crime courts, finding a sufficient nexus in this case should not raise any major issue. The Prosecutor would apparently focus on individuals captured in the context of the armed conflict in Afghanistan, such as presumed members of the Taliban or Al Qaeda transferred to these CIA-run sites. The victim’s affiliation with the Taliban or Al-Qaeda would indeed be sufficient to prove a sufficient nexus (actual membership would not be required; perceived support for one of the enemies of the US would be sufficient to meet the nexus requirement).

However, in deciding whether IHL applied to these alleged acts of torture, ICC judges would likely have to rule on a defence challenge that IHL did not apply there, beyond Afghanistan’s borders. The ICTY, ICTR and ICC (and other war crime courts) have had to decide on the geographical reach of IHL within the territory of States where a NIAC was taking place, but not beyond such territory and the ICTY’s jurisdiction extended only to the territory of the former Yugoslavia, the ICTR’s only to Rwanda and its neighbouring States; the ICC, whose territorial jurisdiction is not so limited, has not had to rule on such a scenario yet. The prosecution of acts of torture committed in CIA-run sites in Poland, Lithuania or Romania would be the first time – to the best of our knowledge – a war crime court has to rule on the applicability of IHL to conducts linked to a NIAC occurring in another non-neighbouring State. The same would be true if State courts decide to prosecute these crimes, acting under the catalytic effect of the ICC complementarity principle – on which Bensouda insists in her announcement.

To summate, we should say the following words:

Let me repeat the words of Richard J. Goldstone, first Chief Prosecutor of the International Criminal Tribunal for Yugoslavia once said, “It is not in the interests of international criminal justice that the ICC should have jurisdiction over the nationals of small and weak nations but not those of the large and powerful.” At present, negative perceptions regarding the ICC’s legitimacy and accountability hamper constructive cooperation, as well as further ratification of the Rome Statute by the distasteful United States and other major loathsome world powers. In a vicious cycle, this disengagement or active resistance to ongoing investigations further weakens the legitimacy and accountability of the Court. Thus, the onus lies both on the Court itself, and major world powers like the US, Russia, and China, to legitimate and strengthen the international criminal justice system in bringing criminals guilty of the gravest atrocities to justice. The following recommendations are directed to both audiences:

1. The International Criminal Court must demonstrate its legitimacy, necessity, and restraint.

a) Demonstrate a symbiotic relationship with state parties; for example, by taking cases referred to the Court by states and stressing the complementarity principle of the court, whereby it will only pursue cases if they have not first been conducted domestically.

b) Exercise discretion with regard to the Prosecutor’s proprio motu, and clearly articulate prosecutorial reasoning for the decision to act independently from a UN Security Council decision.

2. The United States must act and legislate its support for the International Criminal Court.

a) Ratify the Rome Statute, signalling a more permanent, legal commitment to the Court that extends beyond election cycles.

b) Eliminate the Nethercutt Amendment, replacing its coercive approach and Article 98 agreements with symbiotic, bilateral, and multilateral approaches to enforcing justice.

c) Use UN Security Council veto of ICC investigations only in cases that lack reasonable basis to proceed as defined by Rome Statute Article 15, not for the purpose of political alliances.

Support ICC investigations of its own citizens when and if it is unwilling to prosecute them in US courts. This will demonstrate a full willingness for cooperation with the court.

3. Citizens must demand domestic prosecution of war criminals and their state’s cooperation with the ICC.

a) Citizens must lobby the US and other powerful nations currently abstaining from the ICC, including Russia and China, to ratify the Rome Statute.

b) Citizens must demonstrate their support for a multilateral approach to prosecution of crimes against humanity, especially when the arraigned criminals are from their own country.

4. The fourth recommendation is a call to action. State and international institutions face extreme bureaucratic inertia and will not be able to implement these changes rapidly, even if there is political will to do so. Human rights violators, meanwhile, will not wait for institutions to catch up; ongoing atrocities in Afghanistan, Iraq, Syria, Libya, Congo…, to name but a few crises, necessitate a swift, legitimate, and broadly-supported international criminal justice system. The onus is on states and the Court to collaborate effectively, but it is also on individuals - as citizens of democratic states ‒ to demand a system of justice that best protects all of us.

In the larger international context, the contribution of the ICC to international justice and peace depends on its institutional power and the support it receives from states, on its own impartial work, and on the way it is perceived by potential criminals and victims in the world.

Despite all these, it does have the potential to become a Court that provides international justice and peace. It is a court with an ethical aim, that is, the prosecution of criminals, and it is gaining in legitimacy. It could attract states which want to show their support for the defence of human rights. The Court sometimes does work independently from state leaders: on its own initiative it is focusing on the actions of regime leaders in Kenya and Ivory Coast. But the ICC is not only centred on Africa, it has also considered investigating crimes committed in other regions of the world, such as South America, Asia and the Middle East. The work of it could create a long-term deterrent effect, that is, potential criminals could fear the consequences of their acts, especially once they are no longer in positions of power.

In order to improve the impact of it, its members have a crucial role to play in supporting the Court to provide international justice. They must create a safe environment for those victims of crime willing to testify at the ICC, and protect them from further violence. States should also help it implement its arrest warrants, and contribute to the ICC’s reparations system for victims of crime.

States parties to it could, for instance, include support for victims of grave crimes into their programmes on development. More broadly states must work on promoting justice for all people, independently from the work of the ICC focused on punishment for particular individuals. The reaction of victims to the work of the ICC is also indeterminate, but overall it seems positive.

Fatou Bensouda’s announcement is a very courageous move to try the real culprits of CIA, American Establishment and their mango-twigs who have remained untouched for more than 73 years. They have many hats and many faces while committing grievous acts in countries after countries according to their free-will. They must be brought to justice in no time and to do this the ICC has larger roles. We hope the ICC must show enough courage to show the bright light to the world. If they succeed, the names of ICC and its leaders will be inscribed in golden letters. And they would receive high commendation from all peace and freedom-loving people all over the world. The world will then be a better place for people for living in peace and harmony. It must happen sooner and then the whole world would come to know how much horrific crimes they committed to the mankind across the world since long. The writer believes that the court’s proceedings, once divulged, would shake the whole world! And people all over the world should extend their fullest support and cooperation to them in clear and louder tones to successfully carry out this sacred task for the greater good for us all in the world planet.


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