Effectiveness of the ICC under scanner
With most powers failing to abide by the global court’s mandate, questions have been raised about its jurisdiction and influence
Recent threats issued by John Bolton, the United States National Security Adviser, against the International Criminal Court (ICC) have raised questions about the nature of the court. Bolton stressed that his country would use “all means to protect its citizens from the court and its violation of American sovereignty”. He even threatened sanctions against its judges and prosecutors if they prosecute Americans, Israelis and other allies of the US! If this is the case then the question arises: What are the court’s areas of jurisdiction? What factors have made some powers feel wary to join? Does this court really ‘scare’ the US? Finally, is it capable of providing justice and preventing violations throughout the world?
Efforts to establish an International Criminal Court followed the Second World War. A strong push was made to look into crimes against humanity at the Nuremberg Tribunal, which was set up to punish crimes by the war’s defeated parties. But efforts to establish a court were quickly ignored by everyone under the Cold War that made the establishment of such courts politically unrealistic.
A new initiative was made following the collapse of the Soviet Union in 1991. The United Nations General Assembly commissioned the United Nations International Law Commission in 1992 to prepare the draft statute for the establishment of the International Criminal Court. Consequently, in 1994, the Commission submitted to the General Assembly the draft statute of the court, and after several meetings, a conference was held in Rome in 1998, which culminated in the adoption of the statute of the court with 120 countries voting in favour of its establishment. Twenty-one countries refrained and seven others voted against it including the United States and Israel. The statute of the court considered that the 20th century witnessed “serious crimes that threaten world peace and security and cannot go unpunished.”
Thus, on July 1, 2002, the ICC was established legally under the Rome Statute, headed by the Argentine Attorney General Luis Moreno-Ocampo, who was later succeeded by the Gambian lawyer Fatou Bensouda. Incidentally, there is sometimes confusion between the International Criminal Court and the International Court of Justice. The second is an arm of the United Nations aimed at resolving disputes between states. The former is independent of the United Nations, whose authority is limited to crimes committed by individuals: Genocide, crimes against humanity, war crimes and crimes of aggression.
Along with the US, there were other major and middle-power countries that also refused to sign the Statute, most notably China, India and the Russian Federation. China has refused to sign on the grounds that the court contradicts the sovereignty of member-states and its legal power contradicts states’ willingness to try its own nationals. But perhaps the most important reason for China’s refusal to sign is the Court’s right to prosecute war crimes that cover both internal and international conflicts (for example the issue of Uighur rights, which constitutes one of 56 ethnicities in the People’s Republic of China can be brought up in the Court).
Non-international conflicts
Likewise, India opposed what it called the ambiguous definition of crimes against humanity, the right provided to the UN Security Council to refer cases, to delay investigations, to bind a nonmember state, and so on. But the biggest concern for India’s refusal to sign was the same for China: The inclusion of non-international conflicts in the classification of war crimes. Within the same context came the Russian Federation’s decision to suspend its participation in the Rome Statute, a decision signed by Russian President Vladimir Putin in 2016 in order to protect the Russian military commanders and soldiers fighting in many countries of the world from prosecution. The second motive is Russia’s fear of using the Court against it in some political issues and disputes such as those around Crimea and Ukraine.
The US has sought to invalidate ICC by granting all Americans immunity to exempt them from the jurisdiction of ICC, whatever be the crime. In fact, the US sought to consolidate its opposition to ICC within the framework of domestic national legislation, as evidenced by The American Service Members’ Protection Act. This law represents the official position of the US on ICC. First: It bars all forms of US cooperation with the court. Second: It limits the involvement of US armed forces in some UN peacekeeping operations. Third: It bars the transfer of any documents to the court relating to national security. Fourth: It bars military assistance to most countries that have ratified the Rome Statute. In this context: Where does Israel stand?
■ Professor As’ad Abdul Rahman is the chairman of the Palestinian Encyclopaedia.