Global scrutiny after US bars entry to ICC investigators
“If you’re responsible for the proposed ICC investigation of US personnel in connection with the situation in Afghanistan you should not assume that you still have, or will get, a visa or that you will be permitted to enter the United States,” Washington
JUSTICE | The US government has come under intense global scrutiny after it announced on Friday it would deny visas to members of the International Criminal Court (ICC) involved in investigating war crimes committed by US troops in Afghanistan or in other countries.
Secretary of State Mike Pompeo said Washington was prepared to take further steps, including economic sanctions, if the war crimes court goes ahead with any probes of US or allied personnel.
“The ICC is attacking America’s rule of law,” Pompeo told reporters. “It’s not too late for the court to change course and we urge that it do so immediately.”
Today I'm announcing a policy of U.S. visa restrictions on individuals directly responsible for any #ICC investigation of U.S. personnel. The U.S. has not joined ICC because of its broad, unaccountable powers, and its threat to our sovereignty. We will protect our citizens. pic.twitter.com/xGKrTNrhmU
— Secretary Pompeo (@SecPompeo) March 15, 2019
ICC has always been a subject of much vexation on the African continent where it has focused much of its investigations and operations since its establishment in 2002.
The court has indicted several African leaders and figureheads such as President Omar al-Bashir of Sudan and former Ivorian President Laurent Gbagbo, as well as Jean-Pierre Bemba and other warlords.
But over the years, African leaders, backed by African Union, have poured sharp criticism at ICC, accusing it of bias, targeting African leaders and being a tool of Western imperialism. In most of these criticisms of the ICC, African leaders have often cited the failure by the Hague-based court to indict Western powers for war crimes.
Uganda voted in favour of withdrawal after a divisive motion sponsored by Kenya was debated by the Heads of State and Government Summit in Addis Ababa, Ethiopia, in February 2017. Since then, Burundi, among other nations, has indicated intention to withdraw from the court.
Uganda has only issued threats on many occasions although Speaker of Parliament Rebecca Kadaga last year assured ICC that the country will not withdraw its signature.
“A bunch of useless people,” Museveni once called the ICC. Rwanda’s Paul Kagame, whose country is not a signatory to the Rome Statute, said the court was never about “justice but politics disguised as international justice.”
To add to the pressure, African Union went ahead and set up the African Court of Justice on Human and People’s Rights that is supposed to play a similar role with ICC although its works on the continent remain to be seen.
President Uhuru Kenyatta of Kenya, who once faced indictment by the ICC, castigated the court as a “tool of global power politics and not the justice it was built to dispense.”
Pushed had and reeling from pressure and defiance from African governments, the ICC has since moved to try and reposition its legitimacy in international justice by attempting to respond to incessant challenges from African leaders that the ICC looks into America’s alleged war crimes.
ICC moves on US
Although the US has never joined the ICC, but prosecutor Fatou Bensouda asked judges in November 2017 for authorization to open an investigation into alleged war crimes in Afghanistan.
Pompeo’s announcement of visa restrictions was the first concrete action taken by the US against the ICC since the White House threatened reprisals against The Hague-based body in September last year.
“I’m announcing a policy of US visa restrictions on those individuals directly responsible for any ICC investigation of US personnel,” the secretary of state said.
This would include anyone who takes, or has taken, action to request or further an investigation, he told reporters.
“If you’re responsible for the proposed ICC investigation of US personnel in connection with the situation in Afghanistan you should not assume that you still have, or will get, a visa or that you will be permitted to enter the United States,” Pompeo added.
The secretary of state said visas could also be withheld from ICC personnel involved in conducting probes of US allies, specifically Israel.
“These visa restrictions may also be used to deter ICC efforts to pursue allied personnel, including Israelis, without allies’ consent,” he said.
Pompeo said “implementation” of the policy has already begun but he did not provide any details, citing confidentiality surrounding visa applications.
“These visa restrictions will not be the end of our efforts,” Pompeo said. “We’re prepared to take additional steps, including economic sanctions, if the ICC does not change its course.”
‘Politically motivated prosecutions’
The secretary of state said the US had declined to join the ICC “because of its broad unaccountable prosecutorial powers” and the threat it proposes to American national sovereignty.
“We are determined to protect American and allied civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation,” he said.
“We feared that the court could eventually pursue politically motivated prosecutions of Americans,” he said, “and our fears were warranted.”
“Impeding the work of ICC investigators disrupts its vital function and demands impunity for the White House’s own policies. In doing so, it risks setting a dangerous precedent.”
— Amnesty International (@amnestyusa) March 15, 2019
Pompeo said the US government was obliged to protect its citizens and procedures were already in place to deal with members of the US armed forces who engage in misconduct.
“When US service members fail to adhere to our strict code of military conduct they are reprimanded, court-martialed and sentenced, if that’s what’s deserved,” he said.
“The US government, where possible, takes legal action against those responsible for international crimes,” he added, noting that it has supported prosecution of war crimes in Rwanda, the former Yugoslavia and elsewhere.
The ICC and human rights groups reacted swiftly to Pompeo’s remarks.
“The ICC, as a court of law, will continue to do its independent work, undeterred, in accordance with its mandate and the overarching principle of the rule of law,” the ICC said.
Richard Dicker, international justice director at Human Rights Watch, said the US move “is a naked attempt to bully judges and impede justice for victims in Afghanistan” and “blatant contempt for the rule of law.”
“Imposing visa bans on ICC investigators is a naked attempt to bully justice and impede justice while blocking scrutiny of allegations of abuses never carefully examined by any domestic court,” Dicker said.
James Goldston, executive director of the Open Society Justice Initiative, said Pompeo’s remarks reflected the administration’s view that international law matters “only when it is aligned with US national interests.”
"The ICC’s investigations must follow the evidence without fear or favor. Attacking international judicial actors for doing their jobs undermines global efforts to hold to account those most responsible for atrocity crimes such as torture and mass murder."
— Justice Initiative (@OSFJustice) March 15, 2019
“Attacking international judicial actors for doing their jobs undermines global efforts to hold to account those most responsible for atrocity crimes such as torture and mass murder,” Goldston said.
Jamil Dakwar, director of American Civil Liberties Union human rights programme, said Washington’s decision is “an unprecedented attempt to skirt international accountability for well documented war crimes that haunt our clients to this day.”
The ICC was established in 2002 under the Rome Statute that was ratified in July 1998 and joined by 123 countries.
But ICC membership was never ratified by the US Senate and the “America First” administration of President Donald Trump has been a particularly virulent opponent.
John Bolton harshly condemned the ICC in one of his first speeches after becoming Trump’s national security advisor in September.
“We will not cooperate with the ICC,” Bolton said. “And we certainly will not join the ICC. We will let the ICC die on its own.”