A court with no friends

The ICC faces major onslaught from powerful nations with enormous influence on world politics

National security adviser John Bolton calls on a reporter during a news conference after speaking at a Federalist Society luncheon at the Mayflower Hotel, Monday, Sept. 10, 2018, in Washington. (AP Photo/Andrew Harnik)

By Fuad Abdirahman

The establishment of the international criminal (ICC) court in 2002 was seen as major victory for global criminal justice efforts. It was mandated with prosecuting sweeping crimes of concern to the international community, which include genocide, war crimes, and crimes against humanity. Although it has members in some 123, it lacks the presence of powerful nations like Russia and China, among others.

The ICC currently faces major onslaught from two powerful nations with enormous influences around the world: the United States of America and Israel, whose governments have threatened to rip the court into pieces if they continue to “meddle” in the affairs of their respective countries.

The US says the court’s actions in investigating the conduct of personnel in Afghanistan is an “assault to our government”. Israelis, on the other hand, insists that investigating their country’s activities in Palestine by the ICC is a “scandalous decision whose only goal is to try and harm Israel’s right to defend itself against terror.”

The court has faced similar challenges in the past, but the addition of the United States to the list of countries that oppose ICC activities is a setback to the Court. The most recent conflict between the American government and the ICC began when the latter announced it would investigate alleged war crimes carried by US armed forces in Afghanistan.

ICC also said it would investigate activities carried by the CIA in its secret detention facilities in Afghanistan between 2003 and 2004, as well as probe the Afghani government – backed by the US – and the Taliban, who were fighting the Americans.

US National Security Adviser John Bolton said his government would not cooperate with ICC, insisting that the American government never endorsed the 2002 treaty which created the ICC. In his words, the court is “fundamentally illegitimate.”

In the event that the court does carry out investigation of US military actions in Afghanistan, the US government has said it will, in retaliation, ban ICC judges and prosecutors from entering the country and freeze any funds they have in US financial institutions.

The utterances of the two governments were met with furious criticism from around the world, with Deputy head of Advocacy and Government Relations for Amnesty International-USA, Adotei Akwei, criticising Bolton’s remarks as “an attack on millions of victims and survivors who have experienced the most serious crimes under international law… and undermines decades of ground-breaking work by the international community to advance justice.”

Akwei called for the US should sign the Rome agreement that created the court and “support — not impede — its investigations, for the ICC prosecutes the most serious crimes under international law — genocide, war crimes, crimes against humanity, and the crime of aggression. Resuming attacks against the court sends a dangerous signal that the United States is hostile to human rights and the rule of law.”

The Court, on its part, in response to the Bolton’s threat, said it “…will continue to do its work undeterred, in accordance with those principles and the overarching idea of the rule of law.”

Human Rights Watch has also said “Any US action to scuttle ICC inquiries on Afghanistan and Palestine would demonstrate that the administration was more concerned with coddling serial rights abusers — and deflecting scrutiny of US conduct in Afghanistan — than supporting impartial justice.”

Meanwhile, Israel has maintained that the court is a political body, and vowed to dismantle if it meddles in its affairs, given it “…represents hypocrisy and gives terror a tailwind.” Specifically, Israel will lobby allies to stop funding the court, which operates with a tight budget of about $200 million (Sh20 billion) a year.

History of defiance

Time and time again, signatories to the Rome Statute have undermined the tribunal’s “reputation and credibility” by actively thwarting investigations or failing to arrest indictees. Cases in point are Kenya and South Africa, whose governments failed to arrest Sudan’s Omar el Bashir despite the existence of active warrants. Uganda also repeatedly failed to arrest warlord Joseph Kony for crimes against humanity, before Kony disappeared altogether from the radar.

Since its creation, the ICC has only concluded 11 cases; except for Georgia, the other cases involve African countries, including Kenya and Sudan. It is with this background that African governments have accused the Court of bias – for, among others, targeting sitting presidents – and caused them to sabotage the institutions activities.

Some countries, like South Africa, Gambia and Burundi, have gone ahead to formally announce and begin the process of withdrawing from the Rome Statute.

Has the ICC got any friends left? (



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