Syria: When Atrocity Bears No Consequence

Written by Kalila M. Jaeger

The founding of the International Criminal Court (ICC) was based on one simple precept: never again. The Nuremberg Trials, conducted in the first international justice tribunal, set a powerful precedent for the international Criminal Court (ICC), a permanent court for the criminal prosecution of atrocities whose entry into force was only realized in 2002. Yet despite broad international support for the ICC, despite the fact that it has accomplished landmark victories and convictions in the last few years, the court has not been able to act against the horrors of the Syrian Civil War. Why isn’t more being done, and is there any way to hold the perpetrators of atrocities in Syria accountable?

Limits on the Court’s Powers

The Court’s founding Rome Statute provides specifically how cases can and cannot be referred to the Court. The Prosecutor does not have the power to pursue just any case: it must fall within the ICC’s jurisdiction; it must have been committed on the territory of a country that has ratified the Rome Statute or by one of its nationals. Those nations that have ratified are referred to in the Statute as State Parties. The Court’s founders included an additional integral provision in the jurisdiction guidelines: in cases where extreme atrocities are committed in a non-member state, atrocities that are determined to represent a threat to international peace and security, a referral from the UN Security Council would override other jurisdiction rules and trigger an investigation by the Court. Any of the permanent members of the Security Council, (China, France, Russia, the United Kingdom and the United States), however, have the right to veto Security Council decisions. A single veto vote nullifies all others, a fact which has prevented the Security Council from referring the Syrian situation to the ICC due to Russia’s allegiance to the Syrian President Bashar Al-Assad.

The Syrian Civil War has raged on six years now, and many have questioned why the ICC isn’t playing a more active role in helping to end the seemingly endless human rights violations. Assad’s government has a discouraging number of allies, and the conflict in Syria has long ago escalated from a battle between Assad loyalists and anti-Assad rebels into something much larger and more chaotic. Before we can fully understand paths to legal accountability, we must gain an understanding of each major player in the fight and their goals.

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How did the Syrian Civil War begin?

Like other uprisings in the Arab Spring of 2011, rebellions in Syria sprang up that year over lack of civil liberties and from pushback against oppressive economic conditions (Lanza, 2011). Extreme drought from 2007-2010 had forced millions to migrate from rural areas into cities, intensifying poverty, overcrowding and general social unrest in the cities (Blanchard et. al, 2014). Brutal crackdowns on the protesters served to further inflame the public, and because much of the Middle East region was engulfed in pro-democracy uprisings, some of which, like those in Egypt and Tunisia, were ultimately successful, the protest movement gained massive momentum. Importantly, though, not all those opposed to Assad’s regime were aligned ideologically; there was no consensus among protesters as to an alternative (Blanchard et. al, 2014). As clashes between government forces and protesters continued and escalated into armed conflict, sectarian divisions between different groups of protesters became more apparent, and friction between them intensified. Intervention from foreign powers escalated the conflict further, into what many view as a proxy war reminiscent of the Cold War era. Infighting and violent struggles for political and religious authority have devolved into the worst display of human rights violations and atrocities of the 21st century. We are inundated with imagery of cities on fire, under siege, drone strike after drone strike, starvation, torture and enforced disappearances of half a million people. Twelve million Syrians are internally displaced from their homes or teeming at the borders of the European Union begging for refugee status. The perpetrators of the Syrian Civil War must be held accountable now. But who are they?

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Who’s responsible for human rights violations in Syria?

1. Bashar Al-Assad and his domestic loyalist forces

Bashar Al-Assad has been the President and Commander in Chief of Syria since the year 2000, a role which he came to fill following after his father through dubiously “democratic” elections.The regime calls itself secular, but the manipulation of sectarian conflict in the country, between Sunni and Shiite Muslims, has long been a tool of political power by the Assads. The Alawite Shia minority religious group, of which Assad is a member, has been a bastion of support for him throughout the conflict. Although Syria is majority Sunni, the country’s security establishment has historically been dominated by the Alawites (Mallat, 1988). As such, most anti-Assad fighters are Sunni, whether domestic or international, and most international powers who support Assad have historically been aligned with Shiite interests.

Since the uprisings in 2011, Assad has ruled with an iron fist, intensifying his crackdowns on rebel groups exponentially and using the Syrian state army to carry out his bidding with excruciatingly brutal tactics, resulting in the worst massacre the world has seen in half a century. Assad will seemingly stop at nothing to retain his power over Syria, and the willingness of foreign powers, notably Russia and Iran, to assist him has made a deposition nearly impossible. Next to ISIL, Assad and his loyalist forces are the most brutally violent players in the Syrian conflict with the most innocent blood on their hands (Bhardwaj, 2012).

• Main goals: to remain in power and stamp out opposition, defeat ISIL.
• Allegations of human rights abuses: The UN confirms at least nine intentional mass killings since the start of the war, with the Syrian government and its allies responsible for eight of them. War crimes include use of chemical weapons, indiscriminate bombing of civilians and aid workers, non-military targets, enforced disappearances, attacking towns, villages, and non-military targets, use of starvation of civilians as a method of warfare, use of rape as a weapon of war, deaths in custody of government officials, and the prevention of medical aid to civilians and children. He is also responsible for crimes against Humanity for the use of torture (Human Rights Watch, 2015).

2. Iran

As a majority Shia nation and a regional neighbor, Iran backs Assad’s regime, and sees the continuance of the Assad’s political power as instrumental to Iran’s interests in the region. Iran’s Supreme Leader, Ali Khamenei, vocally supports Assad, and the nation has provided arms, technology and military training to loyalist forces since the start of the conflict. According to the UN convoy, Iran spends approximately 6 billion dollars annually supporting the Assad regime. Iran has lost over 1,100 troops in the fighting since 2013. Many of the soldiers it deploys, who work closely with Assad’s loyalist forces and with Hezbollah forces are Afghani and Pakistani refugees who agree to serve in Syria in exchange for salaries and Iranian citizenship. Of the 1,100+ fallen Iranian troops, over 750 are refugee mercenaries.

• Main goals: keep Assad (major ally in the region) in power, prove to the US that the nuclear deal did not de-fang Iran, defeat ISIL.
• Allegations of human rights abuses: Iran is accused of the coercion of undocumented Afghans to fight in Syria. As one of the main financial backers of Assad’s government, the atrocities committed in his name are partly Iran’s responsibility.

3. Russia

Russian intervention in Syria began in earnest in 2015 when Assad requested military aid from Putin to fight rebels and Jihadists. In response, Russia stationed military advisors and special operations forces in Syria, and launched airstrikes against rebel and Jihadist targets in the South. Although Russia’s aim to eradicate Jihadist militant groups like ISIS aligns with US goals of the same nature, its willingness (and apparent eagerness) to strike anti-Assad forces-- even those who are considered “moderate”--  is fundamentally at odds with US objectives. Most pundits agree that this is part of a larger attempt by Russia to rebuff US influence in the region (Allison, 2013). Russia has claimed that allowing Assad’s forces to fall would enable terrorist groups to consolidate and seize control of the region. The Syrian Observatory for Human Rights has said that in the first year of the Russian intervention, between September of 2015 and February of 2016, Russian airstrikes had killed 1,700 known civilians, over 200 of whom were children. Syrian Network for Human Rights estimates casualties even higher; reports show that Russian airstrikes have killed more civilians than either ISIS or Syria’s loyalist army.

Russia stands accused of major human rights violations stemming from their participation in the conflict, including the bombings of civilians and a United Nations aid convoy driven by aid workers and carrying food and medical supplies in the fall of 2016 (Borger, 2016). Russia initially claimed that the reports of the attack were fake, and, after eventually acknowledging its occurrence, that they had had no part in it: that the convoy had been attacked from the ground by another coalition. However substantial photo, video and eyewitness documentation have proven this tacitly false and have shown that Russian and Syrian forces were in fact the perpetrators of this terrible crime. Regardless of whether the bombing of humanitarian aid workers and civilians were committed with criminal intent, though many strongly believe that they were, the bombings were at the very least “reckless” and “indiscriminate”, and, as such, constitute war crimes under the Rome Statute. Furthermore, some evidence showed that the planes had dropped non-precision bombs and/or incendiary weapons. If the latter is proven to be true, Russia will be in violation of the 1980 UN Convention on Certain Conventional Weapons, to which the Russian Federation signed on as a state party (Hokayem, 2013).

• Main goals: keep Assad in power, rebuff US influence in the region, end European sanctions.
• Allegations of human rights abuses: Russia stands accused of violations of the UN Convention on Certain Conventional Weapons, and bombings of civilians and aid workers.

4. ISIL

The Islamic State of Iraq and the Levant is a Salafi Jihadist group, or unrecognized state. They operate mostly as a military group, and are followers of the most extreme form of Wahhabi Islam. ISIL rose to notoriety in 2014, following its massive offenses in Iraq, the Sinjar Massacre and the capture of Mosul, during which time it made a name for itself through the use of extreme terrorist tactics and its widespread publishing of videos of beheadings (Ahram, 2015). Recognized by most nations as a terrorist organization, ISIL has deep historical roots in the regions, stemming from Al Qaeda affiliates in 1999, and participating in Iraqi insurgency in 2003 against American forces (Hegghammer, 2011). The group claims to be a state and a caliphate and, as such, to have moral, religious and military authority over all Muslims. The group has been roundly rejected by nearly every Muslim group and coalition, but still holds immense power in the Iraqi region and has managed to launch large scale terror attacks against opposition parties and foreign governments over the last few years. The presence of operatives in foreign countries and it's frightening capability with digital technology have made ISIL a frightening adversary indeed, but most reports show that the group is losing traction and territory consistently at this point (Ahram, 2015).

• Main goals: Seize as much regional territory as possible, execute opposition, practice and spread extremist interpretations of Wahhabi Islam
• Allegations of human rights abuses: War Crimes: killings of civilians on a massive scale killings of hundreds of prisoners of war, summary executions, rape as a weapon of war, sexual slavery, use of child soldiers, use of chemical weapons, Crimes against humanity: systematic persecution of religious minorities (forced conversions), sexual slavery, mass executions and beheadings, destruction of cultural and religious heritage, Genocide: ethnic cleansings in Northern Iraq on an “historic scale” (Ahram, 2015)

5. Saudi Arabia

Since the summer of 2013, Saudi Arabia has made a name for itself as the single largest financier of Syrian rebel groups, and as the largest provider of arms and ammunition, especially Balkan-made, heavy artillery weaponry. These large scale deliveries of arms began in 2012, and were said to have been given in an effort to counter the effects of the massive influx of finances and arms from Iran to the Syrian government forces. Like Qatar, the funds have reached groups across the full spectrum of anti-Assad forces, including Army of Conquest and its Al Qaeda affiliates. A number of political conflicts between Saudi Arabia and its neighbors resulted in the arrangement of Saudi-funded training facilities being established in Jordan. Saudi Arabia’s intelligence agency was instrumental in 2012 in convincing the United States to take seriously the claims that chemical weapons were being utilized in the fight. It was also revealed in 2013 that the Saudi government had forced death-row inmates to fight against Assad’s forces to avoid beheading. The capital and stronghold of ultra-orthodox Wahhabi Islam practice, the use of traditional capital punishment in Saudi Arabia is widespread and often practiced extrajudicially. Collaboration in Middle East conflicts like this one, along with an addictive, oil-soaked alliance have made breaks with the Saudi government over human rights violation (which are extremely well documented) extremely rare and very politically challenging.

In 2015 after two rounds of negotiations in Vienna, Saudi Arabia hosted a conferences for the multitude of Syrian opposition groups, both political and military, though it notably excluded Kurdish factions. The goal was to come to an agreement about a common political platform, in order to initiate negotiations with the Syrian loyalists, and by the end of the conference a military alliance between approximately 30 Muslim states was established in opposition Assad, though pundits question the efficacy of this group in practice.

• Main goals: Remove Bashar al-Assad from power and destroy ISIL through common Muslim coalition, eliminate threats to the oil market such as ISIL capture of oil resources
• Allegations of human rights abuses: forcing of death-row prisoners to participate in battle

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Paths to Accountability

With so many egregious violations of human rights principles, it is despicable to imagine that the participants in this conflict could simply walk away freely. Yet with a devilishly complex and tangled web of players, and with such specific ICC regulations about case referrals, it is proving difficult to bring the perpetrators of these crimes to justice. Without a unanimous referral by the UN Security Council, the ICC cannot take on the case of crimes committed in a non-member state. Other mass atrocities have been tried and perpetrators have been convicted in the past; we know that when the international community comes together with a determination to bring justice, it can be accomplished. Still, no two cases are the same, and every time the process takes an enormous amount of political goodwill and cooperation, collaboration structurally and financially between a wide array of countries, often overlooking political alliances and tensions for a greater cause. What is unique in Syria’s case and what are some possible paths towards accountability?

International Criminal Court

The sad truth is that unless Russia and China have a major change of heart, there is little hope for ICC involvement in Syria at the present time. Without a referral from the security council, the most the ICC would be able to do is to prosecute participants in the conflict who are nationals of ICC member states, such as Jordan, France, the United Kingdom or Tunisia, an action which Prosecutor Bensouda has actively threatened to take (ICC, 2015). Based upon most investigations, however, it does not appear that the foreign fighters the international intelligence community has been able to identify are high enough up in their ranks to be considered by the ICC as viable defendants. It appears that, for now, the ICC’s hands are tied from every angle.

Russia’s alliance with the Syrian government is probably the biggest complicating factor in terms of prosecution because they hold a great deal of power internationally in arenas like the UN. However, if the Syrian conflict continues on in this way for much longer, the political and economic costs of supporting Assad’s government will likely at some point overtake the benefits for Russia, and at that time it may eventually be possible to pry the Kremlin’s grip off the Security Council veto. Still, most countries would rather not see cases brought to the ICC that are likely to result in verdicts of their own culpability. Some suggest that Russian officials could be offered immunity, or even that Russia could be offered state immunity in the proceedings if it would enable the ICC to move forward, but these suggestions are on dubious legal footing and a path forward from there is unclear.

Alternatives to ICC Trials

In the past, there has been success in trying perpetrators of human rights violations with temporary tribunals, such as those in the former Yugoslavia, in Rwanda or in Timor-Leste. However, these tribunals are extremely costly and difficult to establish, and the ICC was developed specifically to replace these temporary courts with a permanent institution. Nevertheless, if the establishment of an ad-hoc tribunal would enable the trial of perpetrators of atrocities, it is a path worth considering. The tribunal would have to be established by agreement between the UN General Assembly and Syria, or by some regional organization. Some experts have even mapped out a blueprint of how to organize it.

There are a few distinct advantages to the tribunals: they are usually directly on-site, rather than isolated in the Hague, (which can make evidence-gathering more streamlined), most are hybrids (including both local and international judges and other personnel who may be more responsive to and aware of local conditions) and, most importantly, they do not require the consent of all major world powers, like agreements made through the UN Security Council do. Russia and China would not have to be consulted.

However, tribunals also have major drawbacks. They are expensive to establish and maintain, (the proceedings last years and inevitably take longer than planned), and very difficult to recruit for; because they are by nature temporary, they offer no career or future to those judges and personnel who agree to lend their talents.

The establishment of a temporary criminal court is an option, but certainly not an easy one. It is difficult to imagine how it would unfold in Syria; likely we would have to wait for a successor regime before attempting to move forward, as was done in Cambodia. Perhaps the indictments of some, if not all, of the players in the war could begin sooner, and in a time of greater international cooperation the tribunal could continue on to the more controversial and complex indictments. As we know from Yugoslavia and Rwanda, these processes tend to take a decade or two at least, so there would be time to wait out the Trump administration and perhaps the Assad regime while the start of the tribunal was underway.

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Reasons for Hope

Although it is easy to view Syria as a lost cause from an international justice perspective, there is reason for optimism moving forward. The search to identify foreign nationals who have participated at top levels in the Syrian civil war is by no means over; the Prosecutor of the Court has made this clear. Furthermore, a discussion is beginning among international law experts regarding Assad’s former life in London, where he worked as an ophthalmologist for six years between 1988 and 1994, before his return to Syria and his involvement in politics. Some experts wonder whether this fact could possibly be a foothold in the fight against impunity; what was Assad’s legal status as a resident of London? In order to hold medical certification, most countries require some kind of permanent status in the nation. The British, as citizens of a country who has ratified the Rome Statute are eligible to be tried by the ICC. Did Assad’s ophthalmology license give him anything close to nationality? Serious investigations are underway to seek answers for questions like these, and we can only hope that their results with arm us with tools to proceed.

The other good news is that there is no state and very few parties that would protest an indictment of major ISIL commanders. Their determination to annihilate and alienate all major world powers may in the end be their undoing. Assad has continually claimed that to cease fire on the rebel groups would enable terrorist groups like ISIL to set deeper roots in the region. This may or may not actually be his motivation for such brutality against the Syrian people, but if we take him at his anti-ISIL word and assume that Russia and China plan to uphold their loyalty to him as well, there may actually be a chance at achieving a Security Council consensus to refer ISIL’s war crimes and crimes against humanity to the ICC. They are by no means the only perpetrators of large-scale atrocities in Syria, but seeing them brought to justice is a goal that almost every country, powerful or not, can agree on. If nothing else, there is likely a path forward there.

We will not likely see justice brought to all perpetrators of human rights violations in Syria any time within the next few decades, but there will come a time when the administrations of the major international powers are more amenable to cooperation with the international justice community and the ICC can proceed in earnest. In the meantime we must never let the people of Syria forget that the world is watching, and that the crimes committed against them will not go unpunished. The evidence and testimony exist and the Court is in place to hear it, no matter how long that takes to come to fruition. Someday these factors will combine, and perpetrators will be held accountable. If there is a way to indict ISIL, the international community will demand it. Until that day, we have an obligation to maintain intense pressure on our national and international institutions and demand that they invest in and work towards initiatives to bring relief to the Syrian people. What is happening in Syria is simply too horrific to be disregarded by the international community, and we have faith that, ultimately, these atrocities will not go unpunished.

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Sources

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5. Bakker, Edwin, Christophe Yves Marie Paulussen, and Eva Entenmann. Dealing with European Foreign Fighters in Syria: Governance Challenges & Legal Implications. International Centre for Counter-Terrorism, ICCT, 2013.

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“The High Costs of Abandoning International Law” and Implications for the International Criminal Court: A Response

The Boston Globe recently published an article by Jeffrey D. Sachs titled “The high costs of abandoning international law.”  Sachs explains the role of international law within the United States, and his points are particularly striking when examining the United States relationship with the International Criminal Court (ICC). 

Fact Check

While the article provides useful insights, there are two errors regarding the International Criminal Court in Sach’s presentation. First, the treaty that established the International Criminal Court is the Rome Statute (1998), but the article implies that the name of the treaty is the “International Criminal Court (1998).” Second, the US did not vote “against the ICC in the UN General Assembly.” The vote on the ICC occurred at the Rome Conference, not the General Assembly. 

Following a Principle of Jurisdiction

The article emphasizes a section of the Trump Administration’s draft trade policy agenda which says:

“Ever since the United States won its independence, it has been a basic principle of our country that American citizens are subject only to laws and regulations made by the US government – not rulings made by foreign governments or international bodies. This principle remains true today.”

Yet, it has been a long-established principle of international law that anyone who commits a crime in a state, can be tried under that state’s jurisdiction. The United States has used this understanding of jurisdiction to prosecute those who are not American citizens visiting the United States, and other states have exercised jurisdiction over Americans in their territory. Hence, if abroad, American citizens are subject to the laws and regulations of the state they are in, regardless of what American laws dictate. This principle of jurisdiction has not typically been one in contention.

The dismissal of this principle is not new. As Sachs acknowledges, many politicians reiterated this misunderstanding about international law. In fact, they relied on this incorrect notion of a jurisdictional clash in many of their explanations as to why the US would not ratify or accede to the Rome Statute. American politicians have repudiated the idea that if American citizens are responsible for crimes under the Rome Statute’s jurisdiction in the territory of state parties to the ICC, they can fall under the ICC’s jurisdiction. This idea is not out-of-step with how states have exercised jurisdiction for centuries. 

In American Interests

The article also examines the notions of “US primacy”  and “American actions alone.” Both ideas foster anti-multilateralism, arguing that the US does not need international cooperation to secure its interests. However, the article notes that various international treaties demonstrate the necessity of international legal agreements for our society to function, and for US interests in “America’s security and economic interests – in the sea, or the environment, or armaments” to be maintained. There are a plethora of regulations and institutions established under international law that benefit Americans. For example, the international aviation law allows planes to fly without running into each other, international maritime law allows ships to carry cargo between states and international postal law allow letters to be delivered. These branches of law have created institutions and regulations that facilitate these functions, which further the interests of the United States. The United States must remain a part of these treaties for our standard of life to be maintained. In other words, the US cannot act alone in the world, if it wishes to maintain its interests. Global problems exist that impact Americans and require global solutions.

One of these solutions is the ICC. It is in the United States’ interests that justice prevails and that the world brings those responsible for atrocities to justice. US practical support for various ICC cases, its War Crimes Rewards Program and its Security Council vote for referral of Libya to the ICC evince these interests. The United States cannot procure global justice, peace and security alone. Nor is it in our interest to try doing so.

History of Resistance from Politicians, not the Public

The article also correctly acknowledges that these myths are not merely a problem of the Trump Administration. Recent US history features resistance to international law, and its refusal to accede to the Rome Statute is invariably a symbol of such opposition. However, while politicians might not support the Rome Statute and other international treaties, several treaties, including the Rome Statute enjoy very broad public support in the US. In fact, a poll by the Chicago Council on Global Affairs found that 72% of Americans thought the US should “participate” in the Rome Statute, and this is not partisan support. 65% of “core Trump Supporters” agreed that the US should support the ICC. This public support has persisted despite the failure of politicians to ratify or accede to these treaties.

Written by Taylor Ackerman

Rule of Law

In its December newsletter, President Lucinda Low of the American Society of International Law (ASIL) took a diplomatic but strong stance on the importance of continued American support for and engagement with the International Criminal Court (ICC). Although ASIL is a non-partisan organization and very rarely issues policy positions, its mission has “implicit policy values embedded in its core” she wrote, including “a belief in international law and support for the rule of law in the conduct of international relations.”

For experts like Low on international law, the dawn of the Trump era is uniquely worrying: all signs point to a stepping back by America from international treaties and tribunals. If this proves true, she asks, “what measures should take up the slack to ensure there is accountability for internationally wrongful conduct?” Her piece in the newsletter also focused in on some of the legal challenges that the US will likely face in 2017, from the refugee crisis in Syria to sanction policy and the free flow of information and ideas. American values, and the values of her organization will be put to the test harshly in the time to come. Like many other authorities in the field, Low worries that our new administration lacks the experience-- and the temperament-- to properly handle delicate issues of foreign policy and international relations.

ASIL has a long and proud history of support for international legal institutions. In 1943, the group adopted a resolution stating that, (1) “the administration of international justice requires a permanent international judicial system with obligatory jurisdiction” and that (2) “instrumentalities, agencies and procedures should be instituted and developed to declare and make effective the considerable will of the Community of Nations”. Since that time, ASIL has been involved in important work to further the US’s role in international legal systems and represents, to date, a powerful cornerstone for the international law community in the United States. ASIL is a highly respected institution on international law; their support for international legal institutions is critical and influential because of its overall position in the field. As a Special Consultant to the Economic and Social Council for the UN, ASIL works to forward international justice through the rule of law by way of advocacy work, research initiatives, education and publications.

ASIL is not the only major American legal association with a strong public stance on participation in the ICC; The American Bar Association (ABA) has an entire domain of its website dedicated to its large-scale ICC project, where it shares resources about the US relationship with the Court, and where it endorses and actively follows current events on American partnership with the Court and runs its active advocacy for the ICC. According to their website, “the project’s mission is to strengthen, regularize, and broaden U.S. engagement with the ICC.”  The ABA has been a vocal supporter of permanent international justice tribunals since 1978; they took part in the negotiations resulting in the Rome Statute (the ICC’s founding document) from 1995-1998 and were present at most important historical moments for the Court since then. (Details can be found on their website). The ABA provides support for what they call “the crucial mandate of the ICC” through advocacy and education as well as through practical legal assistance, arranging platforms for exchange of legal expertise and best practices between domestic American and ICC lawyers. In 2000, the ABA’s House of Delegates passed a resolution explicitly endorsing the ICC and recommending America’s accession to the Rome Statute. The timing of this resolution was especially important; it was released as the relationship between the US and the ICC was just developing. The resolution specifically highlighted similarities between the Rome Statute and the US Constitution and Bill of Rights. The ABA’s message was clear: the ICC’s mission is consistent with and complementary to American values.

The commitments made by these two organizations represent a major commitment by the American legal community: a commitment to grow and strengthen US ties with the ICC. These endorsements are more than symbolic, they are an extraordinary manifestation of the real, dedicated interest that Americans have in international justice. Public opinion polls regarding US participation in the ICC have rarely been more favorable than in the last few years.

Never, though, has America seen a presidential administration so openly hostile to international cooperation or with such flippant disregard for the rule of law in its political dealings. Based on the first month of the Trump presidency, it is rather difficult to imagine a scenario in which the US’ relationship with the ICC would improve substantively over the next four years: Trump has not been shy in expressing his “America first” sentiments. He openly disdains participation in multilateral organizations, especially those with the potential to exert control over United States interests.

With Trump at the helm, American values of liberty, justice and democracy will be put to the test perhaps as never before. If Trump abandons the US’s positive relationship with the Court, or threatens to, the commitment of American lawyers to the ICC will require them to take an unequivocal stand against these actions, which constitute an attack on the rule of law.

The standing up of lawyers must be part of a larger movement by civil society to exert constant and intense pressure on the Trump administration to preserve and strengthen the United States’ relationship with the International Criminal Court. Americans will not accept regression as a political platform or as policy in practice. We will not stand idly by as the degradation of justice and the rule of law on a domestic or international scale takes place in our name.  In the words of Martin Luther King Jr., injustice anywhere is a threat to justice everywhere. Americans understand that when perpetrators of mass atrocities go unpunished anywhere in the world, people everywhere in the world pay the price.

We hope that you will continue to follow AMICC for further resources and opportunities in for advocacy and support for the ICC in the US. Help us deliver a message from the American people to the US government that strengthening our bonds with the Court can only serve to further American goals and ideals. Success for the ICC is success for American values and for the American people.

Written by: Kalila Jaeger

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

The International Criminal Court and Africa: Time to move beyond

The nations of South Africa, Burundi and Gambia have all signaled their intention to withdraw from the Rome Statute, the court’s founding document, and as of recently, Russia has announced it intention to deactivate its signature, too. As you know, the court only has jurisdiction over the countries that have ratified the statute.

In the case of Russia, the rejection of the court is mostly symbolic, a snub after having been castigated by the UN over conduct in Crimea. However, the withdrawals have highlighted a deep rift in the African membership of the court and may have far-reaching consequences, including, many fear, a triggering of a mass exodus of those countries from the Court. African leaders have, on numerous occasions, articulated concern about bias against their continent. UN and ICC officials have over and over asserted that there is no such African bias, and that the court can and will prosecute offenders from any nation within its jurisdiction.

Critics, though, point to the fact that in its first ten years, the ICC’s investigations and prosecutions have all centered on conflicts in Africa, including the issuance of arrest warrants for two African heads of state. The truth of the matter is, there has been a pattern of investigating cases based out of Africa, a glance at the statistics on ICC indictments will show as much, and it's understandable that African political leaders would feel frustrated with what they perceive as a hypocritical system claiming to dole out justice. As we in the advocacy world know, there is more than enough injustice and atrocity to go around: plenty in Europe, the Americas and Asia as well in the African continent. So why have African countries seen the brunt of all international enforcement mechanisms? The explanation is multifaceted.

First, we must address a question of logistics. African countries account for 34 of the 124 ICC signatories; that’s nearly a third of the Court’s membership. If the ICC can only prosecute member states, then it makes sense that African nations should see a high volume of investigations. However, even if you account for that proportion, we shouldn’t be seeing the kind of statistics that we’re seeing now, with nearly all prosecutions being carried out against African countries. What are the missing pieces?

We must remember that many, many guilty countries have not even signed, let alone ratified, the Rome Statute, and are therefore out of the ICC’s jurisdiction. Nations who know they might be charged with war crimes, crimes against humanity, genocide or crimes of aggression have tended to stay far away from ratification: for example, our own United States. Why make ourselves vulnerable to those prosecutions unnecessarily? Although the ICC is keenly aware of atrocities carried out by the likes of America, Israel, China, North Korea and Saudi Arabia, for example, there is little the Court can do to hold participants accountable.

From this fact follows the logic that ICC and UN representatives have posited over and over again: the path to justice will entail a wider acceptance of the Rome Statute and ICC standards, not a narrowing of membership. Those countries that decry the African exodus from the Court must act to expand the reach of the Court and ensure that other nations and other continents are held accountable as well. It’s not that we should back off of African cases, but that we should be more fiercely pursuing other continents’ as well. Furthermore, it is very important to note that the vast majority of the African cases were brought to the ICC by referral from African countries, or by the Security Council. Even as the withdrawals of African nations began, referrals from other African countries (such as Mali) continued, requesting the Court to investigate cases on their own soil. To some, this invalidates the claims of bias; how can the ICC be accused of prejudice when the African cases before it have been referred to it by the countries concerned or by the UN? If anything, other regions of the world should be following Africa’s example, and pushing for the indictment of brutal leaders in their own territories rather than protecting them.

However, it would be a grave oversight and disingenuous to paper over the real genesis of the bias debate. We have to ask ourselves: even if, for example, the United States, Russia and Israel did ratify the Rome Statute, do we truly believe that investigations and prosecutions would be conducted and indicted in a fashion identical to those of African nations? Would there be the same kind of universal political support for the charges, a celebration of the riddance of corruption and violence? Arrest warrants? We are decades away from the kind of political will it would take to extradite US heads of State. Why are we so eager to see it done in other parts of the world?

Although the ICC aims to operate without bias, even international justice advocates are not exempt from ingrained prejudices from vestiges of colonialism. These prejudices, whether conscious or unconscious, have made prosecuting African nations an easy political maneuver, and their effects are manifest everywhere. Geopolitical superpowers like the United States, for example, occupy critical positions of power on the UN Security Council. (This privilege, of course, means that the Rome Statute’s safeguard to allow prosecution of non-members by way of a Security Council referral simply does not apply to the United States, or to Russia or to China.) Even if the Security Council’s veto loophole were somehow abolished, it’s difficult to believe that countries with the sort of political clout that the US carries would be treated equally in the eyes of the court. Cases from powerful nations are absolutely as critical, but the political hurdles to investigation and prosecution are exponentially higher. But where did that privilege come from?

It is critical to remember that our current geopolitical hierarchy was born out of a long history of colonialism and imperialism. “Developed” or “first world” nations that now occupy top positions in international or multilateral organizations, those that set the standards for international justice, did not simply land there. Nations that are referred to as “developing” or “third world” were not created lesser: they were looted and occupied, their people subjugated by foreign powers for centuries leading up to our modern political climate.

Our rhetoric regarding global order betrays our implicit bias towards and admiration of countries that have historically strong-armed their way into political power through the use of the type of atrocity and violence we now seek to condemn. Centuries later, even as we create new alliances, pledge aid and sign treaties, the specters of our past inform our current relations. The backbone of West Europe is made up of countries with more than their fair share of dark history. In many cases, African countries such as the Democratic Republic of the Congo (which has seen seven individuals tried by the ICC to date) were torn apart by the absolute brutality of European colonialism barely 100 years ago: that this nation is battling political instability is little wonder. Where infrastructure is weak, dictatorship, political violence and atrocity always find a home. Conversely, the nations who have been geopolitical powers since the 18th century are those whose pockets were lined often by the pillaging of the African continent. It is ignorant and reductionist to overlook this aspect of foreign relations, even as it applies to the formation of and the conduction of the ICC. It is certainly understandable, given this history, that African nations would be angered by a caseload that seems to convey that atrocities are committed only on their continent and by their nationals.

So what can we do? First and foremost, and as always, AMICC advocates for US ratification of the Rome Statute. Although the ICC has, in the past, been willing to take African cases exclusively, we must not find fault with the strong position the Court has taken in Africa, but rather the weak position it has taken in other regions. That is to say, rather than relaxing prosecutions in African countries, the Court needs to intensify its commitment to upholding standards of justice globally, and work to expand its membership and work around loopholes in its jurisdiction. The ICC has made a start on this by beginning preliminary examinations into UK actions in Iraq and American actions in Afghanistan, though the proceedings will take quite some time to develop. There must be a hard push towards prosecuting wealthy and white countries if we are to counter the claims of imperialism, colonialism and bias in the Court. If the ICC is to successfully resist populism, imperialism and neocolonialism, it must demonstrate absolutely to other international organizations and to the world that it will effectively and diligently pursue cases from major countries.

The United States and Europe cannot decry the African withdrawals from the Court while simultaneously expecting immunity for atrocities committed by their own nationals. There is no room in an international justice organization for neocolonialism. The ICC cannot allow itself or its caseload and standards of justice to be influenced by world powers, all of whom arrived at their position through subjugation of other nations. Moreover, the Court cannot give a free pass to those powerful countries on their crimes while we continuing to take cases from those countries who still have less political capital and clout.

Written by Kalila K. Jaeger