Head of ICC says US measures to curb court are unlawful

ICC president condemns US visa restrictions on officials in Afghan war investigation

The president of the international criminal court has accused the US of acting unlawfully by threatening an economic and legal offensive against the institution following a decision by judges to open an investigation into war crimes in Afghanistan.

Chile Eboe-Osuji said the punitive measures announced by the US secretary of state, Mike Pompeo, this month were an attempt at coercion that went against international law as well as domestic law in the US and elsewhere.

“This is unlawful … In any liberal democracy, or even not so liberal democracies, you pick up a statute book and it will tell you that it is against the law to coerce a court of law in order to have justice the way you want it,” Eboe-Osuji said in an interview. “Even in the US itself, the law forbids that form of conduct.”

The US has said it will impose visa restrictions on the ICC officials involved in the investigation and their families. Additionally, the administration announced a counter-investigation into the ICC for alleged corruption.

Eboe-Osuji, who was appointed in 2018, said he had been surprised by the accusation and described a “sustained smear campaign at every opportunity”.

“It is surprising from such a renowned bastion of liberal democracy … It is something you expect from certain kinds of countries … but you don’t expect that from the United States,” he said. “This is unprecedented not just for the ICC, but for any international court of law.”

US officials are especially sensitive to an investigation in Afghanistan because, along with atrocities committed by the Taliban, government troops and western military forces deployed there, the ICC would also investigate serious abuses committed by the CIA and other US intelligence agencies.

The CIA ran secret prisons in Afghanistan after the US-led invasion in 2001 where torture and other abuse of detainees was systematic. These “black sites” were linked to a programme in which suspected violent extremists were seized from dozens of countries and held in a network of secret detention facilities around the world, including several in Poland, Lithuania and Romania.

In 2019 the ICC initially rejected a request from prosecutors to open an investigation in Afghanistan because the expectation was that those targeted, including the US, Afghan authorities and the Taliban, would not cooperate.

Officials in Washington said then they would revoke or deny visas to ICC staff seeking to investigate alleged war crimes and other abuses committed by US forces in Afghanistan or elsewhere if the investigation went ahead. The court’s chief prosecutor, Fatou Bensouda, later confirmed that her US visa had been revoked.

In March, however the ICC, said it would go ahead with the investigation.

Eboe-Osuji said the Afghanistan investigation was important in terms of the “raison d’etre” of the ICC.

“Remember violations have gone on without investigation or prosecution … [Victims] are saying there have been violations by all the actors – by the Taliban, Afghan forces as well as those alleged against the US military personnel … The ICC is not going to turn them away,” Eboe-Osuji said.

“We don’t do the work because it is a pleasurable thing for us to do or because we have any interest in the outcome one way or another. We do it because there are questions of justice that need asking.”

Speaking last week with Pompeo, the US attorney general, William Barr, said the US measures were an “important first step in holding the ICC accountable for exceeding its mandate and violating the sovereignty of the United States”.

Barr said the US government had reason to doubt the honesty of the ICC and described it as “little more than a political tool employed by unaccountable international elites”.

The ICC was set up in 2002 as an independent international body to prosecute those accused of the world’s worst crimes, where national authorities were incapable of bringing perpetrators to justice. Based in The Hague, the Dutch city that is also home to the international court of justice, it has more than 120 member states.

The Netherlands said it was “very disturbed” by the US measures, while France described them as “a grave attack on the court and a further undermining of multilateralism”. Both nations deployed troops to Afghanistan.

Prosecutors at the ICC have also taken steps that could lead to an investigation into crimes by Israeli and Palestinian forces but judges at the court have yet to decide if the institution can exercise jurisdiction over the West Bank, including East Jerusalem, and Gaza.

Pompeo accused the ICC of “putting Israel in its crosshairs for nakedly political purposes”.

Eboe-Osuji said the institution was grateful for the support shown by its members. “I am confident that [member states] will understand this as an attack against them too,” he said.

William Burke-White, an analyst and international lawyer at the Brookings Institution in Washington, wrote last week: “The sanctions imposed on ICC officials are unlikely to achieve Trump’s objective of blocking the investigation of US conduct in Afghanistan. If anything, the sanctions will redouble those efforts. Unlike most corrupt dictators or terrorist organisations, individuals who choose to work for the ICC or in international human rights more generally are motivated by conscience, not wealth.”


Jason Burke

The GuardianTramp

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