James O’Neill

The International Criminal Court (ICC) is an international tribunal that sits in The Hague in the Netherlands. It began its jurisdictional life on 1 July 2002, the date when the Rome Statute (the ICC’s fundamental and governing document) came into force.

As of March 2019 there are 124 member States. They include all of South America, most of Europe, about half of Africa, and Oceania, including Australia and New Zealand. There are some notable non-members, including China, Israel, Russia and the United States.

The Rome Statute is an important element in the structure of international law given that it has the power to investigate and prosecute genocide, crimes against humanity, and breaches of the Geneva Conventions applicable to armed conflicts. It does not have the power to prosecute crimes of aggression.

A further limitation is that the courts will only prosecute an individual if the State of which he or she is a citizen is unable or unwilling to prosecute. Not being a member State does not exonerate that State from an obligation to cooperate with the ICC in some cases. For example, when the United Nations Security Council refers a case to the ICC, all UN member States are obliged to cooperate.

There are further obligations to cooperate under general principles of humanitarian law arising from the Geneva Conventions and Protocols.

A criticism of the ICC has been that it has been willing to investigate and prosecute individuals from poor countries, notably in Africa, while the misdeeds of individuals from more powerful countries have largely escaped investigation and prosecution. In recent years there has been some movement away from this emphasis on African dictators to encompass a broader range of countries.

Although as noted above there are some significant non-members, most maintain a low profile and have within their own jurisdictions significant legislation to punish people acting in violation of international legal principles. Very few countries have displayed the overt hostility to the ICC more than the United States.

In 2002 the US Congress passed the American Service Members Protection Act (ASPA). It has been nicknamed the “Hague Invasion Act” because it authorises the president of United States to use “all means necessary” to bring about the release of any “US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the ICC.” “All means necessary” implies the use of military force.

That hostility was further exemplified by the United States national security adviser John Bolton, when on 10th of September 2018, in his first major address as national security adviser called the ICC “superfluous” and that the United States would do everything necessary to protect US servicemen, should the ICC attempt to prosecute US servicemen over the commission of war crimes within the I CC’s jurisdiction pertaining to Afghanistan.

Afghanistan ratified its accession to the Rome Statute in 2003, which was after the October 2001 invasion and occupation of that country by the United States and its allies. That invasion was purportedly in response to the events of 11 September 2001, although it is now established that the decision to invade Afghanistan was taken in July of the year.

The ICC made its decision to investigate allegations of war crimes in 2017 and Bolton’s speech was in response to that decision. The ICC has in fact received over 1 million statements from Afghan citizens and organisations in the country, alleging the commission of war crimes. Those allegations were not confined to the actions of American citizens, but encompassed American allies, the Afghan government forces and the Taliban. No other group or country affected by the ICC decision to investigate has made a response similar to that of the Americans.

A separate investigation has been opened by the Australian Federal Police following receipt of allegations of war crimes involving Australian military personnel in June 2018. The details of that investigation have not been released, and there is a suspicion that at least part of the motivation was to demonstrate that Australia was “willing and able” to investigate alleged war crimes by its military personnel and therefore pre-empt any possible adverse finding by the ICC.

In March 2019 a former Australian military lawyer was charged with leaking documents to the ABC, which related to alleged war crimes committed by Australian Special Forces between 2009 in 2013. The AFP investigation is ongoing. The government’s prosecution of the alleged leaker of documents suggests a considerable sensitivity about the allegations.

There is little doubt that crimes within the ICC’s jurisdiction have been committed in Afghanistan. There is equally little doubt that all of the combatant forces have been responsible at one time or another for the commission of war crimes. That much is well documented.

What is notable is that the United States has again up the ante against the ICC for having the temerity to continue investigation, notwithstanding the ASPA and Bolton’s threats in September 2018.

In March 2019 United States Secretary of State Mike Pompeo announced that the United States had imposed visa restrictions on ICC investigators preventing them from entering the United States. The visa restrictions were not the end of the matter. Pompeo said “we are prepared to take any additional steps, including economic sanctions, if the ICC does not change its course.”

Pompeo’s announcement has been widely criticized. The American Civil Liberties Union called it “an unprecedented attempt to skirt international accountability for well documented war crimes.” Amnesty International said that “impeding the work of I CC investigators disrupts its vital function … it risks setting a dangerous precedent.”

The director of the Open Society Justice Initiative (OSJI) said that Pompeo’s statement reflected the Trump administration’s view “that international law matters only when it is aligned with US national interests.”

The ICC itself issued a statement (ss it had done the previous September reacting to Bolton’s threats) that “the ICC as a court of law, will continue to do its independent work, undeterred, in accordance with its mandate and the overarching principle of the rule of law.”

These quoted reactions are exactly on point. The United States is one of the loudest proclaimers of its self-appointed role as the upholder of the “rules based international order.” As the director of the OSJI noted however, the “rules” and the “order” purportedly upheld is when those rules and order are aligned with the US national interest. The hypocrisy of the US position is glaringly obvious.

The ICC, notwithstanding its imperfections, is accepted by the vast majority of the world’s nations as fulfilling an important role in holding accountable the perpetrators of the most serious violations of the standards of international law and decency.

If powerful nations are free to ignore the ICC’s work and the findings, to actively threaten them in the conduct of their investigations, and obstruct their capacity to do so, then any claim to be upholding legal principles and standards is no more than a hollow sham.