ICC’s case against US in Afghanistan

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Sultan M Hali

The International Criminal Court (ICC) is an inter-governmental organisation and international tribunal that sits in The Hague in the Netherlands. The ICC has the jurisdiction to prosecute individuals for international crimes of genocide, crimes against humanity, and war crimes. The ICC began functioning on 1 July 2002, the date that the Rome Statute entered into force. The Rome Statute is a multilateral treaty which serves as the ICC’s foundational and governing document. States which become party to the Rome Statute by ratifying it, automatically become member states of the ICC.
The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council (UNSC) or individual states refer situations to the Court. Unlike the International Court of Justice, the ICC is legally independent from the United Nations. However, the Rome Statute grants certain powers to the UNSC, which limits its functional independence. Article 13 allows the Security Council to refer to the Court situations that would not otherwise fall under the Court’s jurisdiction (as it did in relation to the situations in Darfur and Libya, which the Court could not otherwise have prosecuted as neither Sudan nor Libya are state parties).
The ICC has been accused of bias and as being a tool of Western imperialism, only punishing leaders from small, weak states while ignoring crimes committed by richer and more powerful states.
41 UN member states have neither signed nor acceded to the Rome Statute. Some of them, including China and India, are critical of the Court. US President Bill Clinton signed it but failed to have it ratified by the US Congress, which is mandatory. Thus the relationship between the ICC and the US is tumultuous.
The US Department of State argues that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”. The current law in the USA on the ICC is the American Service-Members’ Protection Act, 116 Stat. 820, nicknamed the “Hague Invasion Act” or the “Invade the Hague Act”, which forbids the United States from cooperating with the ICC in cases that may involve US nationals.
The Armed Forces of USA and its Central Intelligence Agency (CIA) have been accused of being responsible for heinous crimes pertaining to gross human rights violations in Afghanistan. Heretofore, the ICC was unable to pursue allegations against the US because of the anomaly of the US not being a member of ICC and the court avoided direct confrontation with the US government.
In a turn of events, the global criminal court has decided to take on the world’s dominant military power. ICC prosecutor Ms. Fatou Bensouda has sought permission for court judges under article 15 of the Rome Statute to authorize an investigation into these possible crimes since May 1, 2003 (dateline when Afghanistan joined ICC). Although ICC is bound to hear cases only against its member states but it is hearing the case against USA (which is not a member state) due to the fact that crimes are taking place against its member state i.e. Afghanistan.
It is uncertain how the case will proceed because the Bush Administration was so concerned that the ICC would try to assert power over US personnel that it went to extraordinary lengths to guard against that possibility. It sought immunity agreements from member States using foreign assistance as leverage. It blocked U.N. peacekeeping resolutions at the Security Council because they did not include ICC immunity clauses. It even worked with Congress to enact a law–-still on the books—authorizing the US to use military force to rescue its personnel from The Hague should one ever be detained by the court.
The US has also been accused of outsourcing the responsibilities of security in Afghanistan to private security agencies of the ilk of Blackwater, one of whose former employees Raymond Davis created mayhem and a diplomatic crisis in Lahore in January 2011. CIA is also alleged to be exploiting private militia like Khost Protection Force (KPF), Afghan Security Guards (ASG) and Kandahar Strike Force (KSF) among others to hunt and kill Taliban. All such private militias mostly comprise Afghan nationals but due to having special links with CIA, they behave as if they are above the law in Afghanistan. NATO forces are also using them to avoid the direct brunt of human rights violations in Afghanistan. This does not absolve CIA from assuming responsibilities.
There is a strong possibility that the US may refuse to cooperate with the ICC but could agree to take up the cases of gross violations or human rights abuse for trial within its own judicial system. Even that will be a victory for human rights activists.
ICC’s bold initiative is relevant for Pakistan, which could take up the case of the victims in Indian Occupied Kashmir (IOK). India may not be a signatory to the Rome Statute and by extension, a member of ICC but Pakistan should strongly support Afghanistan in its pursuit of justice while picking up the cudgels for exposing Indian atrocities in IOK. Major powers like the US and their allies like India should be taken to task for violating human rights. No one is above the law.
—The writer is retired PAF Group Captain and a TV talk show host.

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