Daily Times

As I said goodbye to my colleagues at the International Criminal Court (ICC or Court) in 2005,after completing my stint at the President’s Office, I left with guarded optimism about the court’s future.  I could see a long road ahead for the ICC: the world’s first ever permanent international court — created through the historic Rome Statute in 2002 — with the global mandate to prosecute individuals who commit war crimes, crimes against humanity and genocide. The idea behind the creation of the court was to end the culture of impunity that allowed perpetrators of international crimes to roam unharmed and take refuge behind state sovereignty thus avoiding the reach of international criminal justice.

Around 2005, the court was undergoing a test of legitimacy: its effectiveness as an international institute would be determined by how well it was accepted in a deeply polarized world, torn by conflict. The court was to pass this test with its hands tied behind its back: it lacks an enforcing arm e.g. a police body of its own and, to enforce its judgments; it depends on the cooperation of countries that accept the Rome Statute. This is not an easy feat. With approximately 104 countries having accepted the court’s jurisdiction, but with the unresolved conflicts of — Palestine, Iraq and Afghanistan —the challenges before the court around 2005 were plenty.

Watching from the sidelines, over the years I have witnessed the trajectory of the court’s journey: from the court’s success in now garnering the support of 123 countries to accept the Rome Statute, to the initiation of investigations in Darfur, Iraq and Palestine for alleged commission of crimes falling under its jurisdiction, the court’s footprint has expanded further.

The last three years have however witnessed a reverse and disturbing trend, as some countries have repudiated the Rome Statute.  The year 2016, saw the withdrawal of Russia from the Rome Statute a day after the court published a report; classifying the Russian annexation of Crimea as an occupation.

Come September 2018, and the court, now having completed 20 years, faces its toughest — and most frightening — test ever. On the eve of September 112018, US National Security Advisor, John Bolton declared the court as “dead” and labelled it as “illegitimate” in the eyes of the US.  This announcement was made by Mr. Bolton, in a speech to the Federalist Society in Washington DC.

Mr. Bolton’s verbal tirade against the court included threatening the court that the US would use any means necessary to protect its citizens and those of its allies from prosecution by the court. Mr. Bolton also threatened to bar ICC personnel from entering the US, freeze any assets they hold in the US, and prosecute them in the US court system.

That the latest US tirade against the court has come from a top US governmental official on the eve of September 11, 2018, against a court created to prosecute those very crimes committed on this unfortunate day leaves international lawyers such as myself in jitters

Following Bolton’s remarks, the ICC, in a statement apt with its stature, reiterated its resolve to continue to do its work undeterred, in accordance with its principles and the overarching idea of the rule of law.

The degree of hostility shown by Mr. Bolton is unprecedented in its scale and degree.  This is despite that the US is a signatory to the Rome Statute since 2000.

The US hostility is rooted in its deeply entrenched anxiety with the nature of the court’s jurisdiction: over crimes that are committed within the territory of a country, that has accepted the Rome Statuteas well as over nationals of a country who have committed crimes in a country, that has accepted the Rome Statute. This hostility is not new. Earliest signs could be seen during the first decade of the court’s inception when the US entered into bilateral non-surrender agreements with countries to shield its citizens from the ICC’s reach.

That the latest US tirade against the court has come from a top US governmental official on the eve of September 11, 2018,against a court created to prosecute those very crimes committed on this unfortunate day leaves international lawyers such as myself in jitters. The timing of this tirade could not have been worse. Above all, the current US administration’s decision to treat the court as some international conspiracy that is busy conjuring sinister ways of prosecuting US personnel; leaves some serious questions about how the US’ views about the Court have evolved over the years.

To put things in context, since 2016, the court started flexing its muscles by launching investigations into alleged crimes committed in Afghanistan.  The ICC’s chief prosecutor made a finding that there was reasonable basis to believe that the US military had committed torture, at secret detention sites in Afghanistan, operated by the CIA. Recently in 2017, the court’s Chief Prosecutor sought an investigation into alleged war crimes in Afghanistan.  As Afghanistan has accepted the Rome Statute, the court has jurisdiction over Afghans as well as over nationals of countries that commit war crimes, crimes against humanity or genocide within Afghanistan.

Over the years, the court has faced criticism ranging from being called an African court — as most situations being dealt by the court relate to African countries — to delay in launching prosecutions and incurring huge financial costs. The court’s processes have been tedious and outcomes slow. Some criticism of the court is legitimate and worthy of debate. However, US attempts to sideline and dismiss the court as outright illegitimate, opens a fresh front, in the war between American exceptionalism and the international legal order represented by the ICC.

Historically, the US played a central role in the Nuremberg and Tokyo war crimes prosecutions, and was pivotal in supporting the evolution of international law, and its offshoot; international criminal law.

The international criminal justice system, represented by the ICC, was the result of decades of relentless efforts by the world at large to reach a consensus over the creation of; a first ever permanent international criminal court which, it was hoped, would put an end to impunity enjoyed by perpetrators of international crimes.

With countries such as China, India and Pakistan staying on the sidelines by not accepting the ICC’s jurisdiction till date, Russia’s repudiation of the Rome Statute, and now the US’ open position to publicly discredit the ICC; the very international rule of law championed for decades is now under serious threat.  It would not be wrong to say that the ICC today faces a trial unlike any faced by it before.

The author is an international lawyer and a graduate of Harvard Law School. He can be reached at: hassanshad@gmail.com

Published in Daily Times, September 16^th 2018.