29th October 2020

Confidant Classes

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US sanctions against ICC officials

US sanctions against ICC officials are seen as a setback for multilateralism

  • It is rare for a court to deliver justice when the sanction ends. However, in a statement this week, the United States announced sanctions, including asset freezes and visa bans, against two officials of the International Criminal Court (ICC) in The Hague.
  • Those responsible were ICC prosecutor Fatou Bensouda, and the head of the ICC’s Competence, Complements and Cooperation Division, Phakiso Mochochok (who was punished for materially assisting prosecutor Bensouda), for an investigation on alleged war crimes, by US forces and the Central Intelligence Agency, (CIA) in Afghanistan since 2003.
  • In announcing the decision, US Secretary of State Mike Pompeo called the ICC “a completely broken and corrupt institution” and threatened that the United States would “not tolerate illegitimate attempts [of the ICC] to bring Americans to its jurisdiction.”
  • “In particular, Mr. Pompeo pointed out that the United States had never ratified the “Rome Statute,” which created the ICC in 1998 and did not was therefore not subject to its decisions.
  • The investigation Ms. Bensouda opened in 2017 requested authorization to investigate war crimes, extrajudicial killings, torture and attacks against civilians by the Taliban, Afghan forces, US forces and other international military personnel stationed in Afghanistan after the fall of the Taliban.
  • In her pre-trial presentations, Ms. Bensouda said there were “reasonable grounds to believe that, since May 2003, members of the US military and the CIA have committed war crimes of torture and cruel treatment, to personal dignity and rape and other forms of sexual violence in accordance with a policy approved by US authorities ” , adding that the findings were based on the findings of the US Senate and Department of Defense committees over the years.

Blow to world order: the US decision has been criticized by the UN, the EU, 10 members of the UN Security Council, including the UK and France, as well as several international human rights agencies man, all of whom have called for sanctions to invest.

  • They say the US action has been a setback for the rules-based multilateral order, and the move to sanction anyone who assists the ICC will discourage victims of violence in Afghanistan from speaking out.
  • Some have pointed out that unilateral US sanctions would encourage other regimes accused of war crimes to disobey ICC rulings.
  • The Rome Statute has been signed by 139 countries and 123 have ratified it through their parliaments and internal processes. Although the United States was part of the founding movement to build the ICC to try genocide and war crimes cases, especially after the failure of the courts in Rwanda, it decided not to ratify the statute in 2002 Countries like Russia, China and India, however, have never been in favor of the Rome Statute or the ICC, and they have never signed on.
  • For India, the decision was based on a number of principles. For starters, the ICC is a criminal jurisdiction, unlike the International Court of Justice (which rules in civil matters), and it claims the right to pursue cases against countries that are not even signatories.
  • India said the Statute gives the UN Security Council a role in terms that violate international law by granting the power to refer cases to the ICC, the power to block such referrals and the power to ‘Binding non-state parties.’ Former Indian UN envoy Asoke Mukerji about these decisions, explaining that India was basing its objections on the Vienna Convention on the Law of Treaties.
  • India also opposed the omission of cross-border terrorism, the use of nuclear weapons and weapons of mass destruction in areas where the ICC would open its investigations.
  • While India and other countries not signatories share US concerns about the ICC, US action is seen as yet another blow to multilateralism.
  • In the last few years, the Trump administration has walked out of several UN agencies and international agreements, including Human Rights Council, UNESCO, the Paris climate change agreement and the Iran nuclear accord.
  • Particularly at a time the U.S. accuses China of disregarding international norms in the South China Sea and other areas, and of human rights violations in Xinjiang and Tibet, the U.S.’s pushback over the ICC’s case in Afghanistan seems counterproductive.
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