US punishes International Criminal Court for investigating potential war crimes in Afghanistan

US punishes International Criminal Court for investigating potential war crimes in AfghanistanThe Trump admin­is­tra­tion has sought to weak­en or aban­don var­i­ous inter­na­tion­al agen­cies since 2016. Now it’s tak­ing aim at the Inter­na­tion­al Crim­i­nal Court, a glob­al tri­bunal that inves­ti­gates and pros­e­cutes war crimes, tor­ture and genocide.Claiming the ICC’s inves­ti­ga­tion into alleged war crimes by U.S. forces in Afghanistan pos­es a nation­al secu­ri­ty threat, Pres­i­dent Don­ald Trump issued an exec­u­tive order on June 11 effec­tive­ly crim­i­nal­iz­ing any­one who works at the ICC. Its lawyers, judges, human rights researchers and staff could now have their U.S. bank accounts frozen, U.S. visas revoked and trav­el to the U.S. denied. On Sept. 2, Sec. State Mike Pom­peo announced the new sanc­tions would be applied for the first time, against ICC spe­cial pros­e­cu­tor Fatou Ben­sou­da and her top aide. The exec­u­tive order does not tar­get U.S. cit­i­zens. But Amer­i­cans can be sanc­tioned if they “mate­ri­al­ly sup­port” the ICC by, say, fil­ing an ami­cus brief to sup­port a case. Such lan­guage usu­al­ly applies to for­eign ter­ror­ist orga­ni­za­tions and their enablers – not human rights lawyers. The retired Gen. Wes­ley Clark called Trump’s order a “trag­ic mis­take” in for­eign pol­i­cy. He says the U.S. “has noth­ing to fear from the ICC,” which exists to deter and pun­ish the kinds of atroc­i­ties com­mit­ted by Ger­many and Japan dur­ing World War II.I am an inter­na­tion­al human rights lawyer who has defend­ed and advo­cat­ed for vic­tims of gross human rights vio­la­tions in Amer­i­can courts and at the Unit­ed Nations. For these peo­ple, the ICC is the only real means to hold their per­se­cu­tors account­able, even if few of them will ever set foot in the court. Brief his­to­ry of the ICC­The ICC is the only crim­i­nal court with near glob­al juris­dic­tion. Since its found­ing in 2002 in The Hague, it has suc­cess­ful­ly pros­e­cut­ed over 40 high-rank­ing politi­cians, war­lords and heads of state for geno­cide, war crimes and crimes against human­i­ty. Those impris­oned include Thomas Luban­ga, a war­lord who recruit­ed child sol­diers and forced them to fight in the Demo­c­ra­t­ic Repub­lic of the Con­go, and Bosco Nta­gan­da, con­vict­ed of rape, mur­der and sex­u­al slav­ery in the same con­flict. The ICC also issues war­rants for the arrests of lead­ers who’ve fled the court’s jus­tice, such as Sudan’s Omar al-Bashir, who stands charged with geno­cide for the rape, killing and tor­ture of civil­ians in Dar­fur. Fugi­tive sus­pects are pros­e­cut­ed by the ICC if and when they are extra­dit­ed to The Hague.Occasionally, spe­cial war tri­bunals are estab­lished out­side the ICC to pros­e­cute spe­cif­ic cas­es in spe­cif­ic coun­tries. Recent­ly, a spe­cial inter­na­tion­al tri­bunal con­vict­ed a Hezbol­lah mem­ber for the 2005 assas­si­na­tion of Lebanese prime min­is­ter Rafik Hariri. Togeth­er, the ICC and these com­ple­men­tary spe­cial tri­bunals enforce inter­na­tion­al human rights law. The ICC is a court of last resort. It acts only when nation­al gov­ern­ments can­not or will not inves­ti­gate and pros­e­cute war crimes. Its juris­dic­tion is inten­tion­al­ly nar­row. It means coun­tries with a strong rule of law need not fear inter­na­tion­al inves­ti­ga­tion. US fear­ful of inter­na­tion­al jus­ti­ceIn the ear­ly 1990s, the U.S. was deeply involved in Unit­ed Nations nego­ti­a­tions in the Rome Statute, the treaty that cre­at­ed the ICC. But in 1998 Pres­i­dent Bill Clin­ton decid­ed not to ask Con­gress to rat­i­fy the Rome Statute, claim­ing there was no pro­tec­tion against “politi­cized pros­e­cu­tions.” Despite not being one of the court’s 123 mem­ber coun­tries, the U.S. has often facil­i­tat­ed the ICC’s work. Suc­ces­sive U.S. admin­is­tra­tions have imposed a series of sanc­tions against peo­ple under ICC inves­ti­ga­tion, includ­ing mem­bers of the Assad regime sus­pect­ed of com­mit­ting war crimes in Syr­ia. The U.S. has also cham­pi­oned the ICC’s ongo­ing exam­i­na­tion of crimes com­mit­ted by the Tal­iban in Afghanistan and its inves­ti­ga­tion of Myan­mar for pos­si­ble geno­cide against the Rohingya Mus­lims. The U.S. also got involved in the hunt for the infa­mous Ugan­dan guer­ril­la leader Joseph Kony, who was indict­ed by the ICC in 2005 for using chil­dren as sex slaves and insurgents.But some of the ICC’s newest cas­es hit close to home.One is a pend­ing inves­ti­ga­tion of Amer­i­can mil­i­tary actions in Afghanistan between 2003 and 2004. Dozens of peo­ple claim to have been tor­tured dur­ing inter­ro­ga­tion by the CIA in “black sites” cre­at­ed by the Bush admin­is­tra­tion. Two cur­rent Guan­tanamo detainees, Shar­qawi Al Hajj and Guled Duran, who are rep­re­sent­ed by legal coun­sel, have pro­vid­ed detailed tes­ti­monies to the ICC.Another is the ICC’s inves­ti­ga­tion into pos­si­ble crimes by Israel relat­ed to Jew­ish set­tle­ments in the West Bank and East Jerusalem. Israel, like its ally the U.S., is not a mem­ber of the ICC.In May, Sec­re­tary of State Mike Pom­peo warned the ICC to end its “ille­git­i­mate” probes into the U.S. and Israel or else face “con­se­quences.” Lim­it­ed juris­dic­tion­The ICC per­sist­ed, say­ing the U.S. could fend off the ICC by inves­ti­gat­ing the alleged war crimes itself.“The I.C.C. is not intent on ‘haul­ing’ Amer­i­cans up to tri­al before it,” wrote ICC pres­i­dent Eboe-Osu­ji­in in a June 18 New York Times op-ed respond­ing to Trump’s Exec­u­tive Order. It is sim­ply com­mit­ted to see­ing cred­i­ble claims against U.S. secu­ri­ty per­son­nel in Afghanistan inves­ti­gat­ed, Eboe-Osu­ji said.But the U.S., like Israel, has refused to acknowl­edge that war crimes may have been com­mit­ted. Such stand­offs trig­ger ICC involve­ment as the court of last resort. His­tor­i­cal­ly, the Inter­na­tion­al Crim­i­nal Court has almost exclu­sive­ly pros­e­cut­ed indi­vid­u­als from weak­er nations, pri­mar­i­ly in Africa. Some crit­ics have dubbed it the “African crim­i­nal court.” Yet most African coun­tries, like oth­er ICC mem­bers, remain sup­port­ive of the court’s work.[Insight, in your inbox each day. You can get it with The Conversation’s email newsletter.]The ICC is also a slow, cum­ber­some and expen­sive form of jus­tice. It has spent over US$1.2 bil­lion over the past 12 years to suc­cess­ful­ly pun­ish only three indi­vid­u­als of the dozens it has pros­e­cut­ed. But the court’s impor­tance goes beyond its ver­dicts. With­out its ful eye and long arm, war crim­i­nals would roam free. In under­min­ing its work, the Trump admin­is­tra­tion claims to pro­tect Amer­i­can secu­ri­ty. But if the U.S. won’t coop­er­ate with the ICC in inter­na­tion­al crim­i­nal inves­ti­ga­tions of its own cit­i­zens, oth­er coun­tries are less like­ly to help when the U.S. wants ter­ror­ists and war crim­i­nals brought to justice.This arti­cle is repub­lished from The Con­ver­sa­tion, a non­prof­it news site ded­i­cat­ed to shar­ing ideas from aca­d­e­m­ic experts.Read more: * Ban­ning mobile phones in immi­gra­tion deten­tion would make an inhu­mane sys­tem even cru­el­er * Aus­tralians don’t have a ‘right’ to trav­el. Does COVID mean our days of care­free over­seas trips are over?Susan M. Akram does not work for, con­sult, own shares in or receive fund­ing from any com­pa­ny or orga­ni­za­tion that would ben­e­fit from this arti­cle, and has dis­closed no rel­e­vant affil­i­a­tions beyond their aca­d­e­m­ic appointment.


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