Attacks on the International Criminal Court are Attacks on War Crimes Victims

By Nasredeen Abdulbari[1]

Thousands of innocent civilians have been killed in places like Darfur and Libya by armed attackers sponsored, supported, and/or controlled by governments or anti-government armed groups. Civilians are killed despite the fact that they are protected by Protocol I to the Geneva Conventions and Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court.[2] Their killings, often perpetrated on account of their ethnicity or regional affiliation, remain a never-ending nightmare for their families, because the perpetrators have not been brought to justice and some of those who ordered the killings are still in power.

In Darfur, for instance, no senior official has ever been arrested for the murders of vast numbers of civilians.[3] But the fact that the International Criminal Court (ICC) has issued arrest warrants against Sudan’s president—the man bearing primary responsibility for the unending killing spree in Darfur—and other senior officials gives hope not only to the victims of war crimes in Sudan, but also to the hundreds of thousands across the globe who have lost their loved ones in war zones.[4]

The establishment of the ICC was a great step forward in mankind’s long march towards justice and respect for the laws of war. The Court was created 20 years ago to serve as a court of last resort—that is, to prosecute the world’s worst crimes if a country’s own courts would not or could not prosecute them. Practically speaking, this means that countries that have independent and capable judiciaries and adhere to the principle of accountability, like Denmark, Norway, Finland, Sweden, and the Netherlands, are unlikely to be subject to the jurisdiction of the court.

The ICC has been hailed by human rights activists and supported by the vast majority of countries. But it is not surprising that it has been attacked by authoritarian states that are involved in egregious violations of international humanitarian law and that have ensured that their own justice systems will not prosecute these cases.

Despite being (or perhaps because it is) a beacon of hope for war crimes victims, authoritarian governments have long attacked the integrity of the ICC.[5] But the most recent attack came from United States National Security Advisor John Bolton, who threatened to impose sanctions on the Court’s judges and declared that the U.S. would not cooperate with the ICC.[6] No wonder Sudan’s chargé d’affaires to the United States sent a Twitter message praising Mr. Bolton’s remarks.[7] Mr. Bolton’s statement serves only to harm the Court and cause pain to the victims who pinned their hopes on it.

Mr. Bolton made his remarks in reaction to an impending decision to be issued by the ICC Pre-Trial Chamber III with regard to authorizing an investigation into Afghanistan that could possibly include actions taken by U.S. personnel against detainees in Afghanistan.[8] President Trump later told the U.N. General Assembly on September 25, 2018 that the U.S. would not support or recognize the ICC.[9]

This is not the first time Mr. Bolton has attacked the Court. He started his anti-ICC campaign during the Bush administration, where he was able to convince the administration to withdraw from the Rome Statute, to which the United States was then a signatory (although the U.S. had not yet ratified the treaty).[10] However, despite Mr. Bolton’s anti-ICC stance, the U.S. did not stand in the way of Security Council action in 2005 to refer the case in Darfur to the ICC.[11] Mr. Bolton’s current stance – and his role as National Security Advisor – puts the United States in the same camp as governments like that of Sudan, which has killed thousands of civilians in Darfur (and other regions) since 2002 in the name of rooting out an insurgency.

It remains to be seen precisely what effect the United States’ aggressive posture will have on the Court’s operations. In the long run, those who seek justice at the Court’s doorstep will likely have to look to the Court’s member-states and other supporters in the international community to ensure it can continue its important work. But in the more immediate term, Mr. Bolton’s aggressive statements against the ICC will have a painful impact on the millions of war crimes victims across the world who have no hope for justice other than at the ICC.

As the National Security Adviser of a major global power that should always have an ethical duty to protect victims of atrocities and help them to seek justice, Mr. Bolton’s comments are especially painful to those who have witnessed atrocities visited upon their families and countries and who do not have national justice systems capable of securing redress and fighting impunity. Furthermore, his position is somewhat inconsistent with a robust commitment demonstrated by previous U.S. administrations to human rights—given that the United States has, for example, been pressuring the Khartoum government to stop human rights abuses, including by imposing sanctions during the Clinton and Bush administrations. Even after lifting sanctions on Sudan in October 2017, the Trump administration has retained sanctions on individuals against whom there are (ICC) arrest warrants related to Darfur war crimes.[12] Chief among these is President Omar al-Bashir, who has successfully eluded arrest by staying out of countries that would execute the warrants.[13]

Whether the U.S. government will actually carry out its threats remains to be seen. With 123 member countries across the globe, the ICC has sufficient international support to continue its work of bringing powerful politicians, warlords, and soldiers who commit horrendous crimes against civilians to justice. International courts have eventually succeeded in prosecuting many murderous leaders. The families of war crimes victims should always remain hopeful that those who violate the laws of war will, sooner or later, come before the ICC.

 

Footnotes

[1] Nasredeen Abdulbari is an independent consultant on international and constitutional law and doctoral researcher at the Georgetown University Law Center. He was a Stoffel Scholar and a Satter Fellow at Harvard Law School. He can be reached at nha32@georgetown.edu and followed on Twitter at @nasabdulbari. The author would like to thank Elizabeth Evenson and Kathleen Rose from Human Rights Watch for their comments and suggestions.

[2] Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 UNTS 3; Rome Statute of the International Criminal Court art. 8(2)(b)(i), July 17, 1998, ISBN No. 92-9227-227-6

[3] On the prevalence of impunity in Sudan, see Meetings Coverage, Security Council, Culture of Impunity Must End for Justice to Prevail in Darfur, International Criminal Court Prosecutor Tells Security Council, U.N. Press Release SC/128638 (June 8, 2017) https://www.un.org/press/en/2017/sc12863.doc.htm; Stephanie Nebehay, U.N. calls for end to impunity for crimes in Darfur, Sudan, Reuters, Aug. 21, 2015, https://www.reuters.com/article/us-sudan-un-idUSKCN0QQ1XG20150821; Rep. of the United Nations High Commissioner for Human Rights on Impunity and Accountability in Darfur for 2014 (Aug. 2015), https://www.ohchr.org/Documents/Countries/SD/ImpunityAccountabilityInDarfur2014.pdf.

[4] The International Criminal Court has opened five cases related to the situation in Darfur and issued six arrest warrants. One suspect, rebel leader Abdallah Banda, passed away and the other suspects, including the Sudanese President, are at large. For more information, see “Situation in Darfur, Sudan”, International Criminal Court, ICC-02/05, https://www.icc-cpi.int/darfur.

[5] For examples of anti-ICC statements made by authoritarian leaders, see Rwanda’s Kagame slams ‘selective’ justice by ICC, New Vision Daily, Oct. 17, 2013, https://www.newvision.co.ug/new_vision/news/1333641/rwandas-kagame-slams-selective-justice-icc; Museveni Blasts ICC Over Kenyatta Trial, New Vision Daily, Oct. 9, 2014, https://www.newvision.co.ug/new_vision/news/1311967/museveni-blasts-icc-kenyatta-trial; and Conor Gaffey, Uganda: Museveni Calls ICC ‘useless,’ Prompts Western Leaders to Walk Out, Newsweek, May 13, 2016, https://www.newsweek.com/uganda-museveni-prompts-western-leaders-walkout-icc-useless-459605. The Republic of Burundi has even withdrawn from the ICC after a UN report found human rights violations were committed and urged the ICC to open a case. See Jina Moore, Burundi Quits International Criminal Court, N.Y. Times, Oct. 27, 2017, https://www.nytimes.com/2017/10/27/world/africa/burundi-international-criminal-court.html.

[6] Among other attacks, Mr. Bolton stated that, “We will respond against the ICC and its personnel to the extent permitted by U.S. law. We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.” John Bolton, Protecting American Constitutionalism and Sovereignty from International Threats, Speech to the Federalist Society, (Sept. 10, 2018), https://www.youtube.com/watch?v=TX_WaNnvgNU.

[7] Ambassador Mohammed Atta Abbass, Sudan’s chargé d’affaires to the United States, Tweet sent on September 11, 2018, https://twitter.com/AttaAbass/status/1039556471103610880.

[8] “Preliminary examination: Afghanistan,” International Criminal Court, https://www.icc-cpi.int/afghanistan.

[9] President Donald Trump, Remarks by President Trump to the 73rd Session of the United Nations General Assembly, New York, N.Y. (Sept. 25, 2018), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-73rd-session-united-nations-general-assembly-new-york-ny/.

[10] In addition, he pushed for and succeeded in passing the American Service-Members’ Protection Act of 2002 (The Hague Invasion Act), according to which the US can use military force to free any U.S. citizen or US-allied citizen who is under the arrest of the Court. Although the Act was amended to allow the U.S. government to support the Court in certain situations (the Dodd Amendment), Mr. Bolton’s attacks, which clearly contradict the amendment, raise serious credibility questions regarding its commitment to international justice because they are inconsistent with the amendment. See American Service-Members’ Protection Act, Pub. L. No. 107-206, §§ 2001-2015, 116 Stat. 820 (2002), https://legcounsel.house.gov/Comps/aspa02.pdf.

[11] See S.C. Res. 1593 (Mar. 31, 2005), https://www.refworld.org/docid/42bc16434.html.

[12] For further information, please see Sudan and Darfur Sanctions, the U.S. Department of the Treasury, Resource Center at https://www.treasury.gov/resource-center/sanctions/Programs/pages/sudan.aspx, last accessed on November 27, 2018.

[13] Since the arrest warrant was issued, al-Bashir has visited several countries including Algeria, Chad, China, the Democratic Republic of the Congo, Djibouti, Egypt, Eritrea, Ethiopia, India, Iran, Iraq, Kenya, Kuwait, Libya, Malawi, Mauritania, Nigeria, Qatar, Saudi Arabia, South Africa, and South Sudan. For further details, see Bashir Watch, http://bashirwatch.org/.

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