Today, our sublime mission of establishing transitional justice with regard to the human rights abuse largely revolves around the gravity of international law. But this credo can viably be achieved by upholding the efficacy of international law, a mammoth challenge posed to the global justice system. The US has shown its disdain for the International Criminal Court (ICC) by revoking the visa of the international criminal court’s chief prosecutor Fatou Bensouda in response to her intention to investigate potential war crimes by US soldiers in Afghanistan. The ICC stopped the investigation into the US war crimes arguing that it was non-productive. Obviously, one of the prime roles of The Hague- based World Criminal Court, is to deliver transitional justice. Unfortunately, this assigned task of the ICC will remain unattainable as long as the forces of unilateralism continue to dominate the value system of judicial accountability cherished via multilateralism or equality before the law– vindicated by US’ bete noire of the ICC’s existence.
Consequent upon establishing the Rome Statute on July 1, 2002, the ICC is objectively committed to addressing the challenges vis-à-vis accountability for the most heinous crimes against humanity. Ipso facto, the ICC has had the leverage to assert its jurisdiction over these transgressions: genocide, crimes against humanity, war crimes thereby adopting the referral procedures. Generally, the ICC acts upon a situation which is referred to the Prosecutor either by a state party or by the UN Security Council, or, in case of a propriomotu investigation, initiated by the Prosecutor. Objectively, the ICC’s role other than fighting impunity and adopting its prosecutorial function , is to play a significant part in preventing war crimes and crimes against humanity.
Fatou Bensouda, the ICC appointed prosecutor in the said case in late 2017 asked judges to allow her to probe alleged war crimes and crimes against humanity in Afghanistan committed by the Taliban, Afghan government forces and the ISAF. Needless to say, the US denies recognising its authority over American citizens, advocating it poses a threat to national sovereignty. And consequently , the ICC’s backed down from its investigation into the war crimes in Afghanistan by passing the observation: “not withstanding the fact [that] all the relevant requirements are met as regards both jurisdiction and admissibility,” Afghanistan’s current circumstances are such as to “make the prospects for a successful investigation and prosecution extremely limited.” They felt that pursuing an investigation would not meet “the objectives listed by the victims favouring the investigation” and therefore concluded that an investigation “at this stage would not serve the interests of justice…”
The ICC findings, of course, send a very controversial message to perpetrators that they may enjoy impunity regarding their culpable crimes. Apparently, three inferences could be drawn via Washington’s latest stand on refusing a visa to the ICC prosecutor. First, the US is adopting a policy of multilateralism à la carte- thereby selectively opting to support international institutions that serve its interests; while opposing those institutions who stand in the way of US perceived actions or interests. Second, the hardcore Republican representatives have used security doctrine as the major pretext to get impunity. And last but not least, Washington has no intention of ratifying the Rome Statute nor does the US administration pay any heed and attention to the ICC’s universal jurisdiction.
In order to save its reputation and the future of justice, the ICC must prevent the evil of legal segregation or judicial apartheid — sponsoring double standard whereby powerful states get impunity for their alleged crimes while the weak states face accountability writ large
Make no mistake, the big purpose of the establishment of the Rome Statute has been to implement the rule of law beyond any restrictions of sovereignty. Against this backdrop, Brussels advocated ”The EU expects the US to ensure that any measures adopted by the US vis-à-vis the ICC must be in full compliance with their international obligations endorsed by the ICC-UN Relationship”. But even this multilateral EU’s stance could not change the US refractory approach.The US National Security Advisor John Bolton’s furious criticism of the ICC validates this. While addressing the Federalist Society in Washington John Bolton said, ”We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us”. It is true that geopolitics or power politics played by the powerful states, particularly the US indoctrinated neoliberal policies are the main stumbling blocks in the way of transitional justice. The American Civil Liberties Union (ACLU), the Amnesty International, and the Human Rights Watch have condemned the ICC move of continuing impunity for US war crimes since this move augers ill for transitional justice (deeply imbibed and rooted in accountability and redress for victims).
The latest UN report on the war in Yemen confirms violations and abuses in terms of international human rights law, international humanitarian law and international criminal law duly committed by parties to the conflict. The report also signifies areas where violations and abuses may have been committed but further investigation is needed. Yet given the ICC’s retreat from US investigation over Afghanistan, the Criminal Court could hardly move against the perpetrators.
That notwithstanding, the future of the international liberal order intrinsically depends on our unflinching commitment to multilateralism, human rights, and the rule of law. But this is unfortunate that the US is recklessly destroying the pivot of multilateralism– a savior of the international order. Yet the world seems to have been reverted from a values-based international system – committed to improving the rights of the weakest and most marginalized actors- to a power-politics world where the notion that might is right dominates the global justice system.Anyway, in order to save its reputation and the future of justice, the ICC must prevent the evil of legal segregation or judicial apartheid—sponsoring double standard whereby powerful states get impunity for their alleged crimes while the weak states face accountability writ large.
The writer, an independent ‘IR’ researcher and international law analyst based in Pakistan