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ICC HQ
The ICC HQ in the Hague, subject of recent US attention following suggestions it might investigate US “war crimes”.

 

It has become increasingly hard to predict where the Trump administration is heading in its dealings with the rest of the world. The way in which the US abandoned the Iranian agreement and its subsequent threats to punish any company continuing to trade with them was almost as much as many could swallow in Europe and elsewhere outside the States. However, the most recent declaration by a senior US Official that the International Criminal Court, or ICC, is “illegitimate” has been received with astonishment by governments and observers around the world.

The ICC was formed in 2003 after a number of attempts to try and address a range of awful WW2 crimes such as genocide. Indeed, it was the experience of the Nuremberg Trials of Germans involved in the ill-treatment and execution of Gypsies, Communists, Soviet POWs, Soviet citizens and Jews (amongst others), that led directly to the 2003 Rome Statute.

The aim of the ICC is to try persons (but not states or organisations), who are deemed to have committed crimes of humanity, including war-crimes, where it has become unlikely for the perpetrators to be brought to justice, or impossible for any single nation be able to try offenders in a manner that might be deemed fair and impartial.  The ICC works under the terms of the Rome Statute, which countries join as part of their overall commitment to the maintenance of international law and order.

The Rome Statute established four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Those crimes “shall not be subject to any statute of limitations”. Under the Rome Statute, the ICC can only investigate and prosecute the four core international crimes in situations where states are “unable” or “unwilling” to do so themselves; the jurisdiction of the court is complimentary to jurisdictions of domestic courts. The court has jurisdiction over crimes only if they are committed in the territory of a state party or if they are committed by a national of a state party; an exception to this rule is that the ICC may also have jurisdiction over crimes if its jurisdiction is authorised by the United Nations Security Council.” (ICC website)

Typically, The ICC responds to official requests from a State organisation, or the UN Security Council, that a person is brought to justice. These two conditions immediately raise problems, for it may be seen that it might not suit a member of the Security Council to agree to such investigations and/or prosecutions. For example, Mr Putin has been roundly criticised for blocking a number of requests for legal action against Russia’s Syrian allies – to the extent that most countries have given up even attempting to get a vote passed by the Security Council in such cases.

Up to now, America has been a vocal critic of Russia’s attitude to the ICC and its resistance to attempts to bring those guilty of war-crimes to court.  But it would seem that they are about to join the ranks of countries which show little or no regard for what many in the West see as a pillar of democratic principles – namely the adherence to an internationally agreed set of rules governing codes of conduct.

John Bolton
US National Security Adviser, John Bolton, condemns the ICC

The US official censuring the ICC was John Bolton, the National Security Adviser. He expressed his concerns strongly by way of an expression used by some cultures as the ultimate form of separating oneself from another person. He said, “…..for all intents and purposes, the ICC is already dead to us.” His reason was the growing pressure from the international community for some form of investigation into possible war crimes committed by US personnel serving in Iraq and Afghanistan.

Part of the US concern is that they believe the ICC is becoming less a tool of the Western powers trying to bring terrorists and local warlords to justice, and instead an increasingly “socialistic and moralistic” organisation that places itself above the authority of major powers – such as the US. In effect, the US reckons the ICC is starting to take an interest in matters that should not concern it.

According to Bolton, who was speaking on behalf of the US President, the main objections are that:

  1. The ICC unacceptably threatens US sovereignty and US national security interests
  2. The ICC prosecutor assumed the unfettered right to investigate, charge and prosecute individuals regardless of whether their countries have acceded to the Rome Statute
  3. The ICC in no way derives its powers by consent from non-parties to the Statute
  4. The ICC is an unprecedented effort to vest powers in a supra-national body without the consent of either nation-states or the individuals over which it purports to exert jurisdiction
  5. The ICC has no consent whatever from the United States

All this might strike a chord with the current controversy in the UK over the possible prosecution of UK Service Veterans for alleged historic offences committed in Northern Ireland, Iraq and Afghanistan.  Col Richard Kemp, who recently gave evidence to the House of Commons Defence Select Committee about the protection of Veterans against such allegations, has indicated that the US policy is in striking contrasts to the UK approach which, he suggests, is intended to appease our former enemies in order to pre-empt an ICC investigation and “witch hunt” of former British servicemen.

Given such a comparison, it is hard to know whether we should condone the US approach, or condemn it as being as contemptible as that of Russia. One factor that might influence us as we absorb these latest developments is the sort of language being used by senior members of Trump’s team.  By most peoples’ standards, Mr Bolton’s comments fall short of the sort of “diplo-speak” expected of such senior figures, but perhaps we are becoming used to increasingly extreme language as a result of Mr Trump’s own outbursts in social media and elsewhere.

Bolton has now said that the ICC is “ineffective, unaccountable, outright dangerous” and “contrary to American principles” and that the States “would respond against the ICC and its personnel to the extent permitted by US law.” He has even stated that “We will ban its financial system and we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.” The US would also “take note of other countries’ cooperation with the ICC” and “will remember that cooperation when settling US foreign assistance, military assistance, and intelligence sharing levels.

Human Rights organisations have made it clear that they view Bolton’s statements as being totally unacceptable given the number of accusations of Human Rights abuses and cruelty being brought against members of the US Forces. “This misguided and harmful policy will only further isolate the United States from its closest allies and give solace to war criminals and authoritarian regimes seeking to evade international accountability” said a member of the American Civil Liberties Union.

For its part, the ICC has said:

“The International Criminal Court (“ ICC” or the “Court”) is aware of the speech delivered on 10 September 2018 by US National Security Advisor, John Bolton, concerning the ICC.

The Court was established and constituted under the Rome Statute, the Court’s founding treaty – to which 123 countries from all regions of the world are party and have pledged their support through ratification –as an instrument to ensure accountability for crimes that shock the conscience of humanity. The Court is an independent and impartial judicial institution.

The Court’s jurisdiction is subject to the primary jurisdiction of States themselves to investigate and prosecute allegations of those crimes and bring justice to the affected communities. It is only when the States concerned fail to do so at all or genuinely that the ICC will exercise jurisdiction.

The ICC, as a court of law, will continue to do its work undeterred, in accordance with those principles and the overarching idea of the rule of law.

 

It all adds up to another potential Trump-initiated break with what many Americans view as an increasingly “soft and socialist Europe”.  It remains to be seen whether this affects any of the major pillars of the American/European relationship such as NATO. Watch this space………….

 

 

 

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