Trump era — a bad legacy for ICC & int’l law


Syed Qamar Afzal Rizvi

JUST two months after the International Criminal Court green lighted an investigation into potential war crimes by U.S. troops in Afghanistan, the Trump Administration is pushing back the move by some unjust means and methods. President Trump has imposed economic sanctions against court officials “directly engaged with any effort to investigate or prosecute United States personnel without the consent of the United States.” CC prosecutor Fatou Bensouda wants to investigate possible crimes committed between 2003 and 2014, including alleged mass killings of civilians by the Taliban, as well as the alleged torture of prisoners by Afghan authorities and, to a lesser extent, by US forces and the CIA. Andrea Prasow, the Washington Director for Human Rights Watch, said the action “demonstrates contempt for the global rule of law” and represents a “blatant attempt at obstruction”. Professor Jack Goldsmith of the Harvard Law School thinks that the Trump Administration’s onslaught on international law and institutions are significantly harming the international legal order.
In a moment of real national emergencies — ranging from the COVID-19 pandemic to police misconduct, to the highest unemployment rate in a generation — the fact that President Trump, in an executive order on June 11, “declare[d] a national emergency to deal with” the threat posed by the ICC vis-à-vis the US national interests. The record shows that an under-funded court with relatively little to show for two decades of work trying to end impunity would likely be surprised to learn that, in Trump’s view, the ICC has the power to “impede the critical national security and foreign policy work of United States Government and allied officials, and thereby threaten the national security and foreign policy of the United States.” Admitting that a duly authorized investigation of US conduct in Afghanistan constitutes such a threat is both a recognition of the power of international law and a suggestion that the US has something to hide.
It is a truism that Trump’s executive order, sanctioning members of the International Criminal Court, the global judicial body investigating American troops for possible war crimes during the Afghanistan war —sets no worthy precedence. The provocative move targets court staff involved in the probe, as well as their families, blocking them from accessing assets held in US financial institutions and from visiting America. Top members of the Trump Administration — including Secretary of State Mike Pompeo and Defence Secretary Mark Esper — made the announcement with a language of full disdain.
On 5 March, ICC judges authorized the court’s prosecutor to open an investigation into grave crimes committed in connection with the conflict in Afghanistan. That means the Taliban’s indiscriminate and targeted attacks on civilians and the Afghan government’s torture and forced disappearances will come under scrutiny. So too will serious abuses by CIA and US military personnel. Last year, the US revoked the ICC prosecutor’s entry visa – an extraordinary measure usually reserved for the worst human rights violators, not those seeking to bring them to justice. Pompeo, at the time he announced the visa policy, said the US could use economic sanctions if the ICC moved forward with investigations of US nationals. Immediately after the 5 March decision, he disparaged the court. The ensuing comments against the ICC staffers were even more pointed.
In announcing the action, Trump Administration officials said the Hague-based Tribunal threatened to infringe on US national sovereignty and accused Russia of manipulating it to serve Moscow’s ends. In the near-two decades since the International Criminal Court was set up to try the worst violations of international human rights law, it has faced harsh criticism for its highly selective approach to the question of who should be put on trial. The ICC’s prosecutors refused to grasp the nettle posed by the US invasions of Afghanistan and Iraq. Instead, they chose the easiest targets: for too long, it looked as though war crimes were only ever committed by Africans. Now, the ICC’s chief prosecutor, Fatou Bensouda, looks poised finally to give the court some teeth. She is threatening to investigate two states – the US and Israel – whose actions have been particularly damaging to international law in the modern era. The ICC statement held that the US decision had been made “with the declared aim of influencing the actions of ICC officials” in the course of their investigations.
“An attack on the ICC also represents an attack against the interests of victims of atrocity crimes, for many of whom the Court represents the last hope for justice,” it added. Today, the Trump Administration issued unprecedented sanctions against the ICC, as well as the international lawyers and human rights investigators involved in the case. This sanctions regime is fundamentally misguided. It will do little to stop the ICC’s investigation, erodes the U.S. longstanding commitment to human rights and the rule of law, and may undermine one of the most powerful tools in the US foreign policy arsenal — economic sanctions. Rights groups also criticised the move. A preliminary investigation lasting more than a decade examined crimes including intentional attacks against civilians, imprisonment and extra-judicial executions.
A 2016 report from the ICC said there was a reasonable basis to believe the US military had committed torture at secret detention sites operated by the CIA. The report also said it was reasonable to believe the Afghan Government had tortured prisoners and the Taliban had committed war crimes such as the mass killing of civilians “This assault on the ICC is an effort to block victims of serious crimes whether in Afghanistan, Israel or Palestine from seeing justice,” Andrea Prasow, the Washington Director of Humans Rights Watch, said in a statement. “Countries that support international justice should publicly oppose this blatant attempt at obstruction.” Agreeably, America and its President in particular-are powerful actors in the making and unmaking of international law. Sadly, Trump’s era has been a bad fit for the legacy of the global rule of law and justice. Trump’s new Mideast plan, a unilateral discourse towards one Jewish state provides locus standi for the Palestinian self-rule in Ramallah. It envisions millions of Palestinians living in demilitarised enclaves, mostly surrounded by Israel.
—The writer, an independent ‘IR’ researcher-cum-international law analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law.