Big brother being watched: America fighting to stay off the ICC radar

The United States of America has found and is confronting a new enemy it says poses a threat to its national sovereignty. Washington is fighting and weakening the International Criminal Court (ICC).

The court is saying it wants to investigate torture, extrajudicial killings and arbitrary detention of Afghan civilians by the American military personnel, Afghan security forces and the Taliban in Afghanistan.

And that should worry supporters of a rules-based international order and a global legal regime. Indeed, it is important to recall the first policy speech of Mr John Bolton as President Donald Trump’s National Security Advisor last September.

WARMONGER

Mr Bolton, a conservative hawk and warmonger, talked not about Nato; not about the UN; not about the global economy; or trade with tariffs even, but prioritised and went ballistic against the ICC.

Hear him: “The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.”

He was not done: “We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system and prosecute them in the US criminal system.”

THREAT

Last week, Washington made good this threat and, in a drastic and draconian move, revoked Ms Fatou Bensouda’s entry visa. Why? Because Ms Bensouda, the Chief Prosecutor of the ICC, seeks to investigate allegations that US forces have perpetrated war crimes in Afghanistan.

Remember that the court or specifically the Trial Chamber, has not as yet granted the prosecutor leave to investigate, let one prosecute, the Americans.

Ms Bensouda sought the Chamber's authority to this end in 2017 and awaits its decision to date.

Now is it possible that American military personnel have committed war crimes or crimes against humanity in the course of their long sojourn of duty, which goes back to the administration of George W Bush, in Afghanistan?

HUMAN RIGHTS

There is no knowing until and unless the activities of the US military and the allegations made by human rights groups are investigated and tested.

Put another way, the ICC has standing in seeking to investigate allegations of war crimes against American forces, their Afghan counterparts and the Taliban in Afghanistan.

Again, given what befell the terror suspects in Guantanamo Bay; mistreatment of Iraqi soldiers in captivity; mowing down of innocent Iraqis by helicopter gunships in Baghdad; the illegal renditioning of terror suspects in the wake of 7/11; and the unending drone and aircraft strikes against Afghan civilians, ICC has standing to investigate.

More importantly, Afghanistan is a member of the ICC and even if it may not have requested ICC to investigate torture by military personnel, ICC can initiate an independent inquiry.

WAR

America may not be a member of ICC, but it must abide by the laws that govern the conduct of war whether its military is in Syria, South Korea or Japan.

But last month it was not Mr Bolton but Secretary of State Mike Pompeo who took over from where Mr Bolton left off and upped the ante with this menacing threat and demand of the ICC:

“If you are responsible for the proposed ICC investigation of US personnel in connection with the situation in Afghanistan, you should not assume you will still have or will get a visa or that you will be permitted to enter the United States.”

Because the threat has been carried out, one can surmise that Washington is keen to intimidate, harass, cajole, twist arms and do anything else to keep the ICC away from the battlefields, villages, battlers and villagers of war-ravaged Afghanistan and American servicemen and women.

GLOBAL JUSTICE

This may be in keeping with Trump’s antipathy for multilateralism and love for American exceptionalism. But exceptionalism, as Madeleine Albright said, calls for exceptional standards.

One such standard is for Washington to work with Ms Bensouda to get to the bottom of the claims.

Bush the younger may have refused to sign on his predecessor Bill Clinton's endorsement of the ICC, but he co-operated with the court when it suited Washington's interests. Ditto Barack Obama's administration.

Mr Bolton, Mr Pompeo and President Trump can strike a blow for human rights, global justice and exceptionalism by leading debate and investigations into their abuse and prosecuting perpetrators instead of frowning on and foreclosing them.

Washington should regard the ICC as an ally and not an adversary in the search of international justice.

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