The International Criminal Court (ICC) has once again become a target of the US administration’s campaign against international law and institutions. Secretary of State Marco Rubio has declared he wants to dismantle it.
This follows developments last year when Washington imposed sanctions on court personnel, including judges and prosecutors, prompted by plans to investigate alleged war crimes committed by US forces in Afghanistan and Israel in Gaza.
Rubio has stressed the perceived threat to US sovereignty and independence posed by the court. And although there is nothing new in the current US policy, this marks a dramatic escalation.
The US was initially an advocate for the establishment of international courts; however, from the beginning it has opposed the actual court’s jurisdiction, fearing US soldiers and senior officials might be targets of politically motivated prosecutions. Today, it is even more concerned about its political leaders being held to account.
The ICC investigates and can prosecute individuals charged with the gravest crimes of concern to the international community where warranted: genocide, war crimes, crimes against humanity and the crime of aggression.
In the current dysfunctional international system, the ICC is one of the few remaining institutions that can hold individuals to account for so-called atrocity crimes. It acts when states are unable or unwilling to investigate and prosecute individuals. Its work is a vital part of the global fight to end impunity, and through international criminal justice it aims to hold those responsible accountable for their crimes and help prevent these crimes from happening again.
The US campaign could be described as a “forever war” against the court. In 2002, it sought to conclude agreements with other governments supportive of the ICC not to surrender US nationals accused of genocide, crimes against humanity and war crimes. The same year it pushed through a UN Security Council resolution giving impunity to US personnel on peacekeeping operations. The US even went so far as to introduce legislation that authorised the president to use all means necessary and appropriate to free any of its personnel held by the court, the so-called Hague invasion act, which appeared to envision a Rambo-like rescue by special forces.
Much to the chagrin of the US and Israel, the ICC has issued arrest warrants for Binyamin Netanyahu and his former defence minister Yoav Gallant for alleged war crimes and crimes against humanity in Israel’s offensive in Gaza. An arrest warrant was also issued against Hamas leader Mohammed Deif and two other senior Hamas leaders – all of which were withdrawn when their deaths were confirmed.
The US campaign is part of a broader policy to undermine international law. The EU has rejected the Trump administration’s claim and described attacks or threats against the court, elected officials, personnel or those co-operating with it as not acceptable.
In the past, the US was justifiably accused of hypocrisy in relation to international law. Today there is no pretence; the policy is one of outright hostility. The statements from the US are just the most recent manifestation of its antipathy towards international institutions, especially courts and the UN.
The US escalation of its campaign is a pre-emptive move against any action the court might take in respect of current or future US actions, including Venezuela, Iran, deportation of migrants or strikes on boats of alleged drug traffickers.
Another factor is the important contribution international courts make to seeking the truth and establishing the facts, thus creating a historical record of what happened, and exposing perpetrators to the scrutiny of the world. Perpetrators of atrocities and their supporters have much to fear from those who speak truth to power.
The court is not part of the UN and should be distinguished from the International Court of Justice, which is an official UN organ that determines disputes between states. Nevertheless, the UN was central to the creation of the ICC and a spokesperson for UN secretary-general António Guterres has defended it as a critical cog in global justice efforts.
The Irish Government and EU must uphold their international legal obligations to support and co-operate fully with the court, especially when it comes to enforcing its arrest warrant against those who have allegedly committed war crimes and crimes against humanity.
The court should not be seen as a threat to national sovereignty. From the outset it was intended as an alternative to be invoked when national prosecutions failed to materialise. It is designed to complement, not replace, national courts. It exercises jurisdiction only where national courts are unable or unwilling to bring perpetrators of the most serious international crimes to justice.
The most significant legacy of the Yugoslav and Rwanda international criminal tribunals was in raising global awareness of the importance of enforcing international law and the direct challenge the tribunals posed to the culture of impunity that existed until then.
In the early years of the Yugoslav tribunal, some argued that the prosecution of those responsible for war crimes and other atrocities would be an obstacle to bringing about peace and stability. This did not prove to be the case. No court or tribunal can prevent armed conflict, but its deterrent effect should not be dismissed easily. The challenge for the future is to learn from past experiences and utilise effective judicial mechanisms to ensure accountability.
Rubio’s claim that US sovereignty is threatened is self-serving and false. In the long term, it is essential to have accountability and atonement for the crimes of the past – without this there is no deterrent against future crimes and violations of human rights.
Prof Ray Murphy works at the Irish Centre for Human Rights, School of Law, University of Galway