The world's first permanent war crimes tribunal won strong support on Tuesday from 67 nations opposed to U.S. President Donald Trump's sanctions against court staff to block investigation of alleged war crimes in Afghanistan.
The International Criminal Court, which is not part of the United Nations system, can prosecute the most heinous crimes under international law: crimes against humanity, genocide, war crimes and aggression. It has 123 member nations that accept its jurisdiction. It was created to step in as a last resort, when nations are unwilling or unable to dispense justice themselves.
The United States signed the Rome Statute, an international treaty that took effect in July 2002 and underpins the ICC’s authority. But the U.S. Senate never ratified it, arguing the court would infringe on U.S. sovereignty. Afghanistan joined the court in May 2003, giving the court jurisdiction to investigate potential crimes there.
The unusual statement of support for The Hague, Netherlands-based tribunal, drafted by Costa Rica and Switzerland, defended the "international rules-based order" aided by the court's work. It included all but two of the European Union's 27 member nations; the authoritarian-minded governments in Hungary and Poland — despite having ratified the Rome Statute almost two decades ago — did not sign on.
"The ICC is an integral part of this order and a central institution in the fight against impunity and the pursuit of justice, which are essential components of sustainable peace, security and reconciliation," said the 67 nations from Africa, Asia and the Pacific, Central America and the Caribbean, Europe, the Middle East and North and South America.
As ratifiers of the Rome Statute, the nations vowed to "preserve its integrity undeterred by any measures or threats against the court, its officials and those cooperating with it." That was a direct response to the June 11 executive order signed by Trump that authorized U.S. sanctions to be imposed on ICC officials who try to investigate alleged U.S. war crimes in Afghanistan.
On the same day as Trump's order, South Korean Judge O-Gon Kwon, president of the Rome Statute's Assembly of States Parties, called a meeting to discuss the "unprecedented" U.S. sanctions. "They undermine our common endeavor to fight impunity and to ensure accountability for mass atrocities," Kwon said in a statement.
"Sanctions against those involved in the work of the ICC, its staff and their families as well as persons associated with the ICC are unacceptable and unprecedented in scope and content," he said. "In leading the fight against impunity, the ICC must be able to work independently and impartially."
The ICC ruled unanimously in March to allow its chief prosecutor, Fatou Bensouda, a Gambian lawyer and maritime law expert, to launch an inquiry into whether war crimes were committed in Afghanistan by the Taliban, Afghan military or American-led forces going back to almost 18 years ago.
Bensouda, who has been ICC’s chief prosecutor since June 2012 and ICC deputy prosecutor since 2004, asked ICC judges for permission to open the investigation in late 2017. The ICC had been examining allegations of serious international crimes in Afghanistan since 2006, but Bensouda asked to widen the scope into alleged war crimes committed by Taliban and Haqqani network militants, Afghan national security forces, and U.S. forces and intelligence in Afghanistan since May 2003.
'U.S. bullying of the court'
Bensouda's request for an investigation included an examination of U.S. personnel who allegedly used torture and illegally imprisoned others in Afghanistan. She said U.S. military and intelligence agencies, using secret CIA facilities in Poland, Romania and Lithuania, apparently “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period.”
Trump’s order declared a “national emergency” in an effort to shut down the “threat” of prosecution by the ICC and “its illegitimate assertions of jurisdiction over personnel of the United States and certain of its allies.”
It authorized economic and travel sanctions against any ICC staff who might try to investigate U.S. personnel without White House consent. Their financial assets would be frozen, and their immediate relatives would be barred from entering the United States.
In April 2019, the Trump administration revoked a U.S. travel visa for Bensouda in an attempt to block the ICC from investigating Americans. She was told she could only visit the United States for “official U.N. purposes.”
Human Rights Watch, based in New York, applauded the 67 nations' show of support for the ICC.
“Multilateral support for the ICC is key to deterring the chilling effect of the Trump administration’s outrageous effort to undermine justice for victims,” Richard Dicker, HRW's international justice director, said in a statement. “Member countries will need sustained vigilance and to be ready to take further steps to push back against U.S. bullying of the court.”
In their statement, the 67 nations called on all nations to "ensure full cooperation with the court for it to carry out its important mandate" of ensuring justice for victims of the worst international crimes.
"We recall that the ICC is a court of last resort, which anchors a system of justice for serious international crimes rooted in national courts," the nations said. "By giving our full support to the ICC and promoting its universal reach, we defend the progress we have made together towards an international rules-based order, of which international justice is an indepensible pillar."