Rarely does a court dispensing justice find itself at the receiving end of punishments. Yet, in a statement this week, the U.S. did in fact announce sanctions, including asset freezes and visa bans against two officials of the International Criminal Court (ICC) at the Hague. The officials were ICC prosecutor Fatou Bensouda, and the ICC’s head of Jurisdiction, Complementary, and Cooperation Division, Phakiso Mochochok (who was sanctioned for having materially assisted Prosecutor Bensouda), for an investigation into alleged war crimes by U.S. forces and the Central Intelligence Agency (CIA) in Afghanistan since 2003. Announcing the decision, U.S. Secretary of State Mike Pompeo called the ICC a “thoroughly broken and corrupted institution”, threatening that the U.S. will not “tolerate [the ICC’s] illegitimate attempts to subject Americans to its jurisdiction”. In particular, Mr. Pompeo pointed out that the U.S. had never ratified the “Rome Statute”, which created the ICC in 1998, and thus was not subject to its rulings.
The investigation that Ms. Bensouda began in 2017 asked for permission to investigate war crimes, extra-judicial killings, torture and targeting of civilian populations by the Taliban, Afghan forces, U.S. forces and other international militaries posted in Afghanistan after the fall of the Taliban. In her pre-trial submissions, Ms. Bensouda said there was “reasonable basis to believe that, since May 2003, members of the U.S. armed forces and the CIA have committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence pursuant to a policy approved by the U.S. authorities,” adding that the findings were based on the U.S. Department of Defense and Senate Intelligence committees’ own findings over the years.
Blow to global order
The U.S. decision has been criticised by the UN, the EU, 10 members of the UN Security Council, including the U.K. and France, as well as several international human rights agencies, all of which have called for the sanctions to be reversed. According to them, the U.S.’s action was a setback to the international rules-based multilateral order, and the decision to sanction anybody assisting the ICC will deter victims of violence in Afghanistan from speaking out. Some pointed out that the U.S.’s unilateral sanctions would encourage other regimes accused of war crimes to flout the ICC’s rulings. The Rome Statute has been signed by 139 countries, and 123 have ratified it through their Parliaments and internal process. Although the U.S. was part of the founding movement to build the ICC to try cases of genocide and war crime, especially after the courts in Rwanda failed, it decided not to ratify the Statute in 2002. Countries like Russia, China and India, however, were never in favour of the Rome Statute or the ICC, and never signed on.
For India, the decision was based on a number of principles. To start with, the ICC is a criminal court, unlike the International Court of Justice (which adjudicates on civil matters), and arrogates to itself the right to prosecute matters against countries that aren’t even signatories. “India said that the Statute gave to the UN Security Council a role in terms that violates international law by giving the power to refer cases to the ICC, the power to block such references and the power to bind non-State parties to such decisions,” former Indian envoy to the UN Asoke Mukerji told The Hindu , explaining that India based its objections on the basis of the Vienna Convention on the Law of Treaties. India also objected to the omission of cross-border terror, use of nuclear arms and weapons of mass destruction from the areas the ICC would institute its investigations.
While the U.S.’s concerns about the ICC are shared by India and other countries that weren’t signatories, the U.S. action is seen as 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.