US Sanctions Against the ICC Are a Threat to the Rule of Law
On 11 June 2020, President Trump signed an executive order imposing sanctions against the International Criminal Court (ICC) officials investigating possible war crimes by US troops and their allies. Under the order, the ICC investigators exploring charges of war crimes against US soldiers in Afghanistan will face economic punishment and travel restrictions. The sanctions also aim to shelter Israel from repercussions over crimes committed in Palestinian territory. According to the Trump administration, investigations by the ICC pose a threat to American sovereignty and obstruct national security and the foreign policy work of US officials.
RESPONSE OF THE COURT AND INTERNATIONAL BODIES
In response, the ICC called the order "an escalation and an unacceptable attempt to interfere with the rule of law and the court's judicial proceedings". The Court also intends to stand "by its staff and officials and remains unwavering in its commitment to discharging, independently and impartially, the mandate bestowed upon it by the Rome Statute and the States that are party to it". Richard Dicker, International Justice Director at Human Rights Watch, called the order an“assault on the global rule of law" by the Trump administration. Dicker also argued that the order puts "the US on the side of those who commit and cover up grave abuses, not those who prosecute them." Diego García-Sayán, UN Special Rapporteur on the Independence of Judges and Lawyers, has also criticised the Trump administration on this move.
THE RELATIONSHIP BETWEEN THE US AND THE ICC
The United States is not a party to the ICC, which was established in 2002 to investigate and prosecute individuals accused of genocide, crimes against humanity, war crimes, and the crime of aggression. The US took part in the negotiations that led to the creation of the Court, however, it did not submit the treaty to the Senate for ratification. In the early years of the ICC, US president George W. Bush led a hostile campaign against the Court and pressured governments around the world to enter into bilateral agreements requiring them not to surrender US nationals to the ICC. Although the US has not ratified the Statute of the Court, American citizens can still be subject to the ICC's jurisdiction in investigations of crimes that are committed in other countries. In relation to the current investigations, Afghanistan joined the Court in 2003 and Palestine became a party to the Court in 2015.
ALLEGED WAR CRIMES IN AFGHANISTAN
In 2017, the ICC’s Chief Prosecutor, Fatou Bensouda, found sufficient evidence to conclude that the US had committed war crimes during the war in Afghanistan, which began in 2003. A Pre-Trial Chamber confirmed the information submitted by the Prosecutor and concluded that there is "a reasonable basis to consider that crimes within the ICC jurisdiction have been committed in Afghanistan". However, the Chamber eventually rejected the request to open an investigation, noting that "the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited" and it is unlikely that the investigation would meet its objectives. Nevertheless, on 5 March 2020, the Appeals Chamber of the ICC amended the decision of the Pre-trial Chamber and authorised the Prosecutor to commence an investigation into alleged crimes in relation to the situation in Afghanistan.
PALESTINE INVESTIGATION
The ICC has been engaged in a Preliminary Examination of the situation in Palestine since January 2015. In December 2019, Bensouda said that all the necessary criteria to proceed with a formal investigation in Palestine had been met under article 53(1) of the Statute and "there [was] a reasonable basis to proceed" with an inquiry. She was satisfied that "war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip".
According to the UN, "the rule of law is fundamental to international peace and security and political stability". The UN General Assembly has also repeatedly asserted that the "rule of law and the proper administration of justice […] play a central role in the promotion and protection of human rights". These sanctions by the US, however, not only obstruct the rule of law and independence of the judiciary, but also encourage other countries to continue aggression against civilians. A country that holds itself up as a global paragon of human rights should not interfere with the rule of law and disrupt the progress of investigations of possible war crimes committed by its citizens and those of its allies.
Mohaimenul is pursuing an LL.M. at Jagannath University, Bangladesh. His legal research focuses on Public International Law, Constitutional Law, and Comparative Law. Mohaimenul is also a social activist and actively working to improve the lives of marginalised and disadvantaged people.