Responses to 5 "Alternative Facts" about the ICC

UN Photo/Rick Bajornas

There are facts, and there are falsehoods. However, in the past month, the euphemism “alternative facts” has emerged to confuse the two, and there are few institutions more likely to be challenged by misunderstandings and myths than the International Criminal Court (ICC). So, to help decipher what is factual and what is not, we would like to address five alternative facts about the ICC with actual facts.

“Alternative Fact”: Americans do not want to participate with the Court.

Fact: The majority of Americans support US participation the Court. According to the 2016 Chicago Council on Global Affairs survey, 72% of Americans think the US should to participate in “the agreement on the International Criminal Court that can try individuals for war crimes, genocide, or crimes against humanity if their own country won’t try them.” Furthermore, the Court receives bipartisan public support—79% of Democrats, 67% of Republicans and 65% of Core Trump Supporters agree that the US ought to participate in the Rome Statute. In a repeated phenomenon, Americans have consistently polled in favor of American participation in the Court, and support for the Court has seen an upward trend in the US.

“Alternative Fact”: The Court is an unprofessional body made up of unqualified individuals.

Fact: The Rome Statute places strong criteria for judges, there are no recent examples of unprofessional behavior by any personnel, and all of the current judges are highly qualified. The only exception was Judge Fumiko Saiga, who was not a lawyer and had limited knowledge of international law, but Judge Saiga is no longer on the court, having died shortly after her appointment. The international community learned from the appointment and modified the process of nomination as a result. Now, an independent committee of experts review all nominations for the judiciary. As a result, nominating countries present only candidates that the panel will decide are qualified. Under current practice, it is unlikely for states to nominate an unqualified person.

“Alternative Fact”: Only the most violent atrocities should be prosecuted at the ICC. The conviction and prosecution of Ahmad Al Faqi Al Mahdi for his intentional destruction of religious and historical buildings undermined the Court.

Fact: The ICC did not convict Al Mahdi for a bloody atrocity, but for the war crime of the destruction of internationally recognized sites of cultural and religious significance in Timbuktu. These sites were a UNESCO world heritage location. The conviction was appropriate given that not all war crimes include physical attacks on human beings . The Rome Statute makes the intentional destruction of religious and historic buildings without a military target a war crime under the ICC’s jurisdiction. Therefore, it was completely within the Office of the Prosecutor’s mandate to investigate and subsequently prosecute Al Mahdi, particularly since the Office of the Prosecutor’s evidence against Al Mahdi was sufficient for Al Mahdi to plead guilty. If the Court had ignored the well-established Timbuktu case, it would have violated its mandate and weakened its legitimacy. Furthermore, it did not undermine support for the ICC. There was widespread international support for the case and how the Court dealt with it. Many advocates for the protection of cultural heritage applauded the case. Lastly, the OTP’s decision to prosecute this case does not rule out further investigations into violent crimes under the Court's jurisdiction in Mali and subsequent arrest warrants for individuals responsible.

“Alternative Fact”: The Court is standing on shaky ground with little support and a collective withdrawal from African states on the horizon.

Fact: The ICC enjoys widespread support from over 120 state parties, and a threat of mass ICC withdrawal is not as potent as many believe. The majority of African states, as well as other state parties, voiced support for the Court at the last ASP session. Furthermore, while panic emerged after Gambia, South Africa and Burundi announced their intention to withdraw from the ICC, Gambia has since rescinded its withdrawal and South Africa’s High Court ruled the withdrawal submitted by the executive as “unconstitutional.” In response, to African states’ complaints, the ASP took their concerns in account by proposing a venue which these could be voiced. At the same time, the ASP insisted on maintaining the commitment to end impunity.

“Alternative Fact”: The Court’s inability to capture individuals that it issues arrest warrants for, such as  Omar al Bashir, the current Sudanese President, exemplifies the Court’s failure.

Fact: As an international organization, the Court itself cannot enforce its warrants and orders. Instead, its state parties are responsible for arresting these suspects and transferring them to The Hague. Therefore, it is the states, which refuse to arrest those wanted by the ICC, that are at fault, and their failure should not be a reflection on the ICC. However, international condemnation and public opinion and the rule of law within a state can deter such failure and provoke accountability for those rejecting their duties under the Rome Statute. A perfect example of such action is the recent charges brought by the South African Democratic Alliance against officials responsible for the failure to arrest Bashir when he was in South Africa, after international and domestic criticism. As other states and officials, see the results of failure to uphold Rome Statute duties they will be less inclined to follow suit. Moreover, the Court’s docket shows that it has been able to obtain custody of a significant number of persons under its arrest warrants.

Written by Taylor Ackerman
 

Trump, and Bannon and Draft Executive Orders... Oh My! The Future of US-ICC Relations

There is limited amount of information about future Trump administration policy towards the ICC. However, there are indicators of future ICC-Trump relations: a recent draft executive order, Trump policy on international organizations, previous consideration of notorious ICC opponent John Bolton for top foreign policy positions, the State Department website, and Breitbart attitudes towards the ICC. We need to analyze these because future US relations with the ICC will impact the future of the ICC, although not as much as some fear.

Some of the government's recent actions and policies have promoted conversations about the risk of the US ceasing its cooperation and engagement with the ICC. A recent article by the Center for American Progress remarked, “a Trump presidency means that U.S. commitment to international criminal justice—and to human rights in general—may soon be a thing of the past.”  This speculation may be correct, but it can only be just that.

The New York Times reported that a provision in Trump’s draft executive order titled, “Auditing and Reducing U.S. Funding of International Organizations,” calls for a committee to consider cutting funds for the ICC. This provision would not mark a change in US practice because the US can not fund the ICC. In fact, the American Servicemembers Protection Act (ASPA) already bans US funding for the Court. However, its existence could hint at the administration’s awareness of and attitudes towards the ICC. Some aspects of the adversarial nature of the administration’s first action related to the Court might be a source of concern for future ICC-US relations. However, that is not yet clear. The provision may only imply that the US is not likely to begin allocating funds for the Court, or the administration may have wanted to take a symbolic stance against increased cooperation with the ICC. The provision could mean that the administration does not fully understand existing US law on the Court. It may simply be the result of an administration member seeing the ICC on a list of multi-lateral organizations. At the very least, the draft provision’s existence means that a high-level member of the Donald Trump administration is aware of the ICC.

Additionally, the repeated consideration of John Bolton for top foreign policy positions has been a source of speculation on the Trump administration’s future policies related to the Court. During the Bush administration, Bolton spearheaded the strategy of active opposition to the Court. Under Bolton's influence, Bush deactivated the Rome Statute and passed the ASPA. In addition to banning the allocation of US funds to the ICC, the ASPA authorized the use of "all means necessary and appropriate" if the ICC takes an American citizen into custody. Given that the administration seriously entertained the idea of Bolton, such a firm opponent to the ICC, as the Secretary of State or Deputy Secretary of State, it may not be likely that the Trump administration may well not maintain their predecessors' policy of positive engagement.

Another cause of concern has been Trump’s criticism of US engagement in international organizations, notably the UN. Trump has shown hostility towards institutions like the UN, and the administration has sought to leave, or cut funds, to international organizations even where the US holds key leadership positions. Therefore, the Trump administration may not only end the Obama relationship with the ICC, but also could become hostile towards the Court.

The State Department website may be another hint about the Trump administration’s attitudes. The site states that the “current U.S. policy” is reflected through the May 2010 National Security Strategy:

“From Nuremberg to Yugoslavia to Liberia, the United States has seen that the end of impunity and the promotion of justice are not just moral imperatives; they are stabilizing forces in international affairs. The United States is thus working to strengthen national justice systems and is maintaining our support for ad hoc international tribunals and hybrid courts. Those who intentionally target innocent civilians must be held accountable, and we will continue to support institutions and prosecutions that advance this important interest. Although the United States is not at present a party to the Rome Statute of the International Criminal Court, and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the I.C.C.’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”

The fact that, after the administration has made changes to the site—including the removal of pages and documents related to refugees and climate change, this page remains is notable. It may merely reflect an overwhelmed and unorganized State Department. Perhaps the Trump administration has not paid any attention to it. Given that the National Security Strategy is state department policy until it is replaced, it could only mean that issuing a new policy on the ICC is not, currently, a top goal of the Trump administration. Ideally, the page's presence is an indicator that the Trump administration will not differ significantly from the Obama administration in its policy on the ICC.

We know that Steve Bannon, Trump’s chief strategist and former editor of Breitbart, has turned some of Breitbart’s views into Trump administration policy. Therefore, Breitbart is relevant in predicting the Trump administration’s future attitudes towards the ICC. Inaccuracies about the Court  are common on the site. An article from January 25, 2015, stated the the ICC was located in Switzerland. This could imply an attitude of ignorance towards the Court. In fact, under Bannon, Breitbart was not as aggressive towards the ICC as one might suspect. Breitbart articles have not been particularly supportive of the ICC, but they, also, did not engage in attacks against the ICC based on sovereignty or US vulnerability. It did not discuss US ratification of the Rome Statute. In an article about Charles Taylor’s conviction, Breitbart acknowledged that the victims were happy with the conviction. Nonetheless, the radical right-wing site has also written off international criminal justice as useless for procuring peace. An article on South African withdrawal from the Court stated,  “no one could seriously believe that Adolf Hitler would have cancelled the Holocaust out of fear of being prosecuted by some court.” Breitbart has also questioned ICC jurisdiction over Israelis in the Palestine situation, and it referred to potential future charges in the ICC against Netanyahu as “trumped-up charges.” Therefore, the Trump administration might argue the the ICC does not have jurisdiction over the Palestine situation. Elsewhere, Breitbart does not strongly condemn the Court’s existence, nor does it analyze US engagement with the Court. This may translate to a Trump administration that ignores the Court, except when the Court impacts Israel.

Under the Obama Administration, the US assisted the Court with investigations and participated as an observer at Assembly of States Parties (ASP) sessions. US Special Forces have also assisted with efforts to capture high-level LRA officials with ICC arrest warrants. Admittedly, the loss of this support would be a setback for the ICC. ICC prosecutor Fatou Bensouda remarked that withdrawal of positive US engagement with the Court would hamper the ICC. However, it will not stunt the ICC if the US ceases to cooperate. Many supporters of international justice misunderstand the Court and the political situation surrounding it. Consequently, they overstate the effect that a lack of US support would have on the ICC. It would not damage the Court.

Breitbart assumes that the Court is standing on shaky ground, citing lack of support, but, the ICC enjoys widespread support. Since Gambia, South Africa and Burundi announced their intention to withdraw, new political developments in Gambia and South Africa have occurred and it is possible that neither Gambia nor South Africa will follow through with withdrawal. Moreover, the majority of African state parties gave their support to the Court at last fall's ASP session. A threat of massive ICC withdrawal is not as potent as many believe.

If the situations of Afghanistan and Palestine move beyond preliminary examination at the ICC, Trump may respond with hostility. The reaction might be particularly violent if the Court issued arrest warrants for US nationals for crimes committed in Afghanistan. Currently, the Afghanistan situation is in preliminary examination at the ICC. The Court has jurisdiction to prosecute American nationals who committed Rome Statute crimes in Afghanistan, because the Court has jurisdiction over all crimes committed on the territory of a state party.  Afghanistan is a state party to the Rome Statute, and the Court has had jurisdiction over Rome Statute crimes in Afghanistan since May 1, 2003. If the Court finds evidence of such crimes, then the Court should follow through with its responsibility to fight impunity regardless of political pressures. The Trump administration might respond violently to an investigation or arrest warrant for an American, but it might be incorrect to assume this would inevitably harm the Court. An investigation or an arrest warrant would likely produce increased support from the international community and civil society, and, a defensive reaction from the international community would likely emerge in response to a violent response from the Trump administration. 

However, there is hope for future US engagement with the ICC. The Court enjoys widespread support from the American people; 72% of Americans support the ICC according to a poll by the Chicago Council on Global Affairs. Furthermore, criticism of the ICC has been fueled by misunderstandings. The more that is understood about the Court, the more support that Americans will have for it.

The Trump administration has not released any official policy statements on the ICC; so, it could interact with the Court in several different ways. The administration might be a reason for concern about the future of the US-ICC relationship. It could respond with hostility to investigations into the situations of Afghanistan and Palestine. Or, it might maintain a neutral or positive attitude towards the Court. The US does find the atrocities that the Court tries to be appalling, and the Court is an effective institution to deal with some of them. However, the administration may nonetheless even ignore the Court. It might not accept any of its predecessor’s attitudes towards the ICC.

Even if the US withdraws from its previous policy of positive engagement, the Court will not fall apart. However, the broad support of 124 countries will ensure that the Court will continue to work well. Therefore, the ICC will exist and work to end impunity far into the future.

Written by: Taylor Ackerman

Dwindling Momentum for Collective Withdrawal

UN Photo/Eskinder Debebe

Support for the ICC at the 15th session of the Assembly of States Parties (ASP), the tactical move by the ASP President Sidiki Kaba, and internal changes in South Africa and Gambia stalled momentum for widespread African withdrawal from the International Criminal Court (ICC). Government delegations stressed the need to listen to and to address the concerns of African state parties at the ASP, but they also committed to continue the Court’s disregard for impunity. Concerns about withdrawal spiked last fall when Burundi, South Africa and Gambia formally notified the United Nations of their intentions to withdraw from the ICC. Previously, other African states indicated that they, too, might withdraw from the Court. In Kenya, politicians introduced a bill to leave the ICC, and, in January 2016, the African Union (AU) authorized the development of a collective ICC withdrawal strategy. Now, only Burundi is on the path to continue its process of withdrawal from the ICC.

The process of withdrawal in South Africa confronts serious challenges. The opposition party is challenging in court the constitutionality of plans to withdraw from the ICC. Parliament did not receive a bill about withdrawal before the government sent notification of withdrawal to the UN. Yet, South African withdrawal from international treaties requires parliamentary approval. Although plans to withdraw in South Africa continue, there is strong disagreement in the South African Parliament. Additionally, at the last ASP session, the South African Attorney General stated a desire to avoid withdrawal from the Court.

Recent regime change in the Gambia also suggests a reversal in position. In December 2016, the new Gambian President, President Adama Barrow, said Gambia would not withdraw from the Court. In the interview with Deutsche Welle Africa, he said:

“There is no need for us to leave the ICC. The ICC is advocating for good governance. That is our principle. We are already part of the ICC. We will not leave. That is not possible.” 

Many African states are not eager to leave the Court. Since October 2016, no additional states have announced their withdrawal from the ICC. Instead, at the last ASP session, a majority of African States stated their intentions to remain members of the ICC.  Furthermore, there is little indication that Kenya, one of the loudest advocates for departure from the Court, plans to withdraw from the Rome Statute soon. The Kenyan bill to exit the ICC recently expired, and Kenyan Civil Society called for African states to remain in the ICC to improve it at the last ASP meeting. Furthermore, within the AU, there is a clear division about the issue. Many members of the AU are opposed to leaving the ICC, as shown by the debates within the AU. Moreover, the January 2017 AU Summit had signifcantly less anti-ICC rhetoric than 2016.

There has been discussion about a collective AU withdrawal strategy; however, legally, the AU cannot collectively withdraw. Each state is sovereign. So, each state would have to make its own decision to leave the Court and separately notify the UN of its withdrawal from the Rome Statute. This would impede any plans for widespread withdrawal.

If Burundi does not reverse its withdrawal, or other states follow suit in withdrawing, the Court will still have some sources of jurisdiction in the former member. A state’s withdrawal from the Court will not enter into force until one year after it notifies the UN Secretary-General. Therefore, if crimes against humanity, war crimes or genocide were committed between when the ICC began its jurisdiction over that state up until a year after notification of the UN, they would remain under the Court’s jurisdiction. Additionally, if states withdraw from the ICC, the UN Security Council can refer the state to the Court, or a state can accept the Court’s jurisdiction on an ad hoc basis and refer itself.

The impetus for African withdrawal was the ICC arrest warrant for Omar al-Bashir, the president of Sudan. South Africa announced its intention to leave the Court after receiving criticism for its failure to arrest Bashir when he was in South Africa. South Africa argued that Bashir’s head of state immunity in South Africa justified its failure to comply with Rome Statute commitments.

Additionally, the arrest warrant for Bashir made state leaders realize their vulnerability to accountability for crimes against humanity, war crimes, and genocide. The investigation into current President of Kenya, Kenyatta, a sitting leader, only increased this tension. The calls for deferment of ICC cases against state leaders reflect the growing discomfort with accountability. The only alternative would be impunity for state leaders, which would destroy the Court’s reason for existence.

African states proposing withdrawal have argued that the Court is an imperialistic and western institution. The former Gambian Information Minister even referred to the ICC as an “International Caucasian Court,” when justifying Gambian withdrawal. However, states, civil society and individuals from the African continent were key players in bringing the Court into existence. Senegal was the first state to ratify the Rome Statute. Currently, key players at the ICC are nationals of African states. Prosecutor Fatou Bensouda is Gambian, Assembly of States Party President Sidiki Kaba is Senegalese, and five ICC judges are from the African continent. Furthermore, there is support for Africa within its civil society. Thus, the African state parties to the Rome Statute have distinguished roles in leading the rule of law movement.

Proponents for African withdrawal from the ICC also cite the disproportionate amount of cases against African nationals at the ICC. They argue that the ICC is unfairly targeting Africa and that the Court should prosecute crimes occurring on other continents.  Most supporters agree that the ICC should expand its prosecutions beyond Africa, and the ICC has increased its efforts to do so. Yet, it is not true that the ICC is unfairly targeting Africa. The prosecutor did not initiate most of the situations under investigation by the ICC. Uganda, the Democratic Republic of Congo, the Central African Republic, and Mali referred their situations to the Court. The Security Council has also referred several situations to the ICC, including Libya and Sudan.  In fact, the majority of situations under preliminary examination at the ICC are not African states. However, reducing ICC efforts to procure accountability for genocide, crimes against humanity or war crimes in Africa would damage the struggle against immunity in the continent and the rule of law movement. The response to such criticism should not call for enabling impunity for serious crimes in Africa but for increasing accountability elsewhere.

These events indicate that there may be a dwindling momentum for widespread African withdrawal. The ASP session indicated that the arguments for withdrawal are self-serving and weak.

Written by Taylor A. Ackerman