Hira Bahadur Thapa

The international courts are designed to promote global justice system. Some courts are established for specific ends to meet. The 1998 International Criminal Court (ICC) was set up by the Rome Treaty for dealing with serious crimes. Its establishment was seen as a milestone in strengthening international criminal justice. Unsurprisingly, a few UN members have yet to become its party. As many as 123 members of the UN are now parties accepting to consent to the court’s jurisdiction.
The ICC was meant for prosecuting and convicting perpetrators of war crimes, genocide, crime against humanity and crime of aggression. The state parties to the ICC are expected to deal with these crimes themselves in accordance with their own domestic criminal laws. Should they become less competent to effectively address the problems either due to lack of necessary laws or their reluctance to bring their own citizens to justice, the international court is then prompted to take up the prosecution. The court follows its prescribed procedures to move ahead with necessary investigation and states parties to it are obliged to cooperate with it.
Reservations
The operation of the ICC was delayed until 2002 when necessary 60 ratifications for it to be effective were obtained. This is symbolic of some countries’ reservations about its working. Some critics contend that the ICC has prosecuted nationals of Africa only. Based on the available data one can hardly disagree with this accusation of bias. This is why one African state has even withdrawn from the court though more have resented against the court’s performance.
In the recent past, the debate over court’s jurisdiction over the nationals of a state not yet party to it has been reignited by the US and Israeli challenge. ICC’s announcement that it plans to open an investigation into alleged war crimes perpetrated in the Israeli-occupied Palestine territories has invited their strong criticism. Both governments have argued that the ICC cannot scrutinise Israeli settlements in the occupied West Bank and alleged war crimes in Gaza. Their contention is that Israel has not consented to the court’s jurisdiction.
But the ICC has repudiated this position of the US and Israel. Having completed procedural requirements it has decided to go ahead with the said investigation into alleged war crimes perpetrated by Israeli forces in the Palestine territories. The argument of the international court is that if the crimes are committed within the territory of a state party to ICC, it is competent to conduct investigations to punish the alleged perpetrators irrespective of their nationalities.
This is not the first case when countries have criticised the ICC for deciding to investigate their citizens into alleged crimes deemed punishable under the court’s jurisdiction. Clashes have already occurred between the US and the ICC over latter’s efforts to investigate possible war crimes by American personnel in Afghanistan. The US has questioned court’s authority to take up the above investigation as it is not a party to Rome Statute. President Clinton decided to sign that treaty in December 2000 but President Bush unsigned it in May 2002.
The reaction of the US to ICC judges’ authorisation of an investigation into alleged war crimes by US service members and intelligence officers has been very sharp. Resultantly, President Trump in April 2019 decided to revoke a US travel visa for Fatou Bensouda, the ICC’s chief prosecutor. In June 2020, he issued a sweeping executive order (13928) authorising the imposition of economic sanctions against any ICC officials participating in the investigation of “allied personnel without ally’s consent.” He meant to shield the nationals of Israel from the court’s investigation.
In September 2020, Secretary of State Mike Pompeo announced the imposition of a series of travel restrictions and financial sanctions against Bensouda and a senior aide, Phakiso Mochochoko, for engaging in illegitimate attempts ”to subject Americans to its jurisdiction.” He reiterated the threat that any individuals who provided the prosecutor with material support for their investigation would be sanctioned. Despite US’s hostility towards the ICC, there are number of instances where US has played a very cooperative role in assisting court’s investigation of cases, which suit its interests. This exemplifies America’s selective support for multilateralism.

US double standard
Sudan and Libya are glaring examples. In March 2005, the G. W. Bush administration abstained on a UN Security Council vote authorising an investigation into mass atrocities in Darfur, Sudan. Had it cast a negative vote in that resolution, the referral process by the Security Council would have been blocked. Similarly, Obama administration voted yes for a 2011 decision of UN Security Council to open an ICC investigation into crimes committed in Libya.
The UN Security Council resolutions can also trigger ICC investigations. For countries failing to curry favour of five permanent members of the Security Council, the risk of being investigated by the court looms large whether they are ratifiers of the Rome Statute or not. Major powers’ support for the institution like the ICC, which is the premier world body to uphold the principle of international criminal justice, is always crucial. In opposing the court’s investigations in Afghanistan and the Palestine territory, it is evidently clear that the US is willing to allow self-interest to get in the way of independent judicial institutions when it finds them inconvenient for its own policies.
Attempts to restore US credibility in its leadership role in global affairs contradict its non-cooperation with the ICC. Resetting American relationship with the court and support for bringing the perpetrators of heinous crimes to justice, whoever they are, should be prioritised by the Biden administration, which has made US embrace of multilateralism the cornerstone of its foreign policy.

(Thapa was Foreign Relations Advisor to the Prime Minister from 2008-09. thapahira17@gmail.com)