Erna Paris is the author of seven books, including The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice
The International Criminal Court is facing a life-threatening crisis. The International Criminal Court has received “gifts” with the potential to enhance its profile and reputation. Surprisingly, both these statements are true. And both have the capacity to affect the future of the tribunal.
The crisis derives from unprecedented sanctions imposed by the Trump administration last month on ICC prosecutor Fatou Bensouda and her associates. The sanctions blocked their personal assets, prevented them from entering the U.S., and indirectly grouped them together with terrorists – a move that outraged much of the world with the exception of Israel, whose military personnel are also being investigated for war crimes. The sanctions also threatened anyone who gives support of any kind to the ICC.
In this latter attempt at intimidation the administration may have overstepped, for its sanctions against human rights and legal workers led directly to the first of two “gifts" that may actually bolster the court. Last week, a group of prominent U.S. human rights lawyers struck back. They sued the administration for “gagging them” and for "halting their work pursuing justice on behalf of victims around the world.” Additionally, they argued that the effects of the sanctions had been “an unprecedented infringement of their constitutional rights to free speech and a chill that has pervaded the world of international humanitarian law.” Earlier this week, the lawyers were joined by the Open Society Justice Initiative, which also lodged a legal complaint.
If ever there were doubt that the Trump administration has abandoned America’s core principles of human rights and its historical support for international justice, this attack on the ICC is proof things have changed. Sanctions designed to target terrorists have been reconfigured to incapacitate people working to advance accountability and support victims in cases of the world’s worst crimes.
The second “gift” to the ICC concerns the tribunal’s continuing investigation into atrocities committed against the Rohingya minority in Myanmar. Two soldiers recently confessed to personally committing crimes that may meet the legal definition of genocide – under orders from their superiors. These unparalleled confessions will almost certainly ramp up the continuing ICC investigation of that situation.
The videotaped confessions of the soldiers is a precise accounting of the atrocities the two men committed. Although the political class of Myanmar (including Nobel prize winner Aung San Suu Kyi) and the military have consistently denied criminality, these confessions could provide the evidence that is needed for high-level indictments. Should this be the case, the ICC will be able to point to a star success while simultaneously deflecting the barrage of vile language and penalties being imposed by the Trump administration.
I can’t count the times I’ve thought the ICC might not survive successive assaults by the United States and others who fear both its mandate to confront criminal impunity as well as the court’s transnational reach, as laid out in the 1998 Rome Statute, a treaty adhered to by 123 countries. Under president Bill Clinton, the U.S. signed the Rome Statute. Given that the ICC is the direct offspring of the post-war Nuremberg tribunal, which was effectively invented and overseen by Americans as representative of that country’s foundational human rights values, Mr. Clinton’s signing was appropriate.
The background to these more recent machinations is that Mr. Clinton’s successor, George Bush, feared the ICC. Under the mantra of “national sovereignty,” his administration embarked upon a series of offensives. Some bordered on the absurd, such as the 2002 American Service-Members' Protection Act, which authorized the president to use “all means necessary and appropriate” to rescue any citizen who had been detained for suspected international crimes by a country that was party to the Rome Statute. This authorization included raiding the offending country – an endorsement subsequently mocked as the “Hague Invasion Act.” Last month’s draconian sanctions followed along this path: They originated in the ICC’s decision last March to investigate war crimes, such as torture, committed by American servicemen in Afghanistan – documented offences, commanded at the highest levels, that have never been tried in the U.S. proper.
The legal pushback to the Trump administration’s exceptional attack on an international institution and the eventual response in U.S. courts will expose America’s true standing when it comes to global humanitarian law. At the same time, the remarkable confessions of the two perpetrators in Myanmar, who accuse their superiors of issuing commands to kill indiscriminately, will give the ICC a needed boost in its investigations and bring hope to the thousands of victims who have been driven from their country.
So yes, the court is in crisis. And yes, it will survive.
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