Fatou Bensouda of the International Criminal Court (ICC) led an ambitious and brave effort to investigate and prosecute war crimes committed in Afghanistan by the U.S. armed forces as well as the CIA. When she made her intentions known, all hell broke loose. U.S. government officials unleashed a barrage of threats against the court and its jurisdiction. Visa restrictions were announced for anyone who planned on visiting the U.S. for the sake of war crimes investigations. Secretary of States Mike Pompeo said, “I’m announcing a policy of U.S. visa restrictions on those individuals directly responsible for any ICC investigation of U.S. personnel.” He added, “These visa restrictions may also be used to deter ICC efforts to pursue allied personnel, including Israelis, without allies’ consent.”
Moreover, in a direct address to the ICC judges, Pompeo said, “If you are responsible for the proposed ICC investigation of U.S. personnel in connection with the situation in Afghanistan, you should not assume that you still have or will get a visa or will be permitted to enter the U.S.” The entry visa of Fatou Bensouda was revoked. Pompeo took his threat against the court a bit further by saying “we’re prepared to take additional steps, including economic sanctions, if the ICC does not change its course.”
Finally, the court was compelled to reject the request to proceed with the investigation of war crimes and crimes against humanity in Afghanistan, including those allegedly committed by the U.S. armed forces and the CIA. In its statement, the court said Bensouda’s request falls within the court’s jurisdiction and the crimes in question are grave enough to merit an investigation. However, the court is rejecting the request because “the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited.” That is code language for basically saying that since the court cannot really afford to stand up to the most powerful nation on earth, therefore, not standing up to the power and using the law to keep the weak safe from the wrath of the powerful is not what this court should do.
It is pertinent here to know that the ICC was established by the Rome Statute. The U.S. under President Clinton signed the statute but never put it up for Senate ratification. President Bush came into the White House and enacted a law called the American Service-members Protection Act (ASPA). According to this law, if any American or a citizen of some allied nation is prosecuted by the court, the U.S. would have to invade The Hague, which is where the court is situated, to rescue the citizen. In the Netherlands, they call it the “The Hague Invasion Act.” So, when threats of economic sanctions are made, these are mere indications of starting with mild punishments. The court understands those hints.
Therefore, the court said Bensouda hasn’t been able to secure cooperation from the parties, making the investigation very difficult. In other words, if a suspected criminal party is uncooperative with the court and keeps bullying it continuously, it would be let go eventually, citing uncooperative behavior. The court further stated that the court is supposed, “to use its resources prioritizing activities that would have a better chance to succeed.” That is further code language encouraging the prosecution of leaders of some poor African nations who are not U.S. allies. That has been the norm and standard of the court anyway.
The decision of the court was hailed by some of the major war criminals of the world. President Donald Trump had called the court “illegitimate” and had said that the court would be met with “swift and vigorous response” if it ever tried to prosecute U.S. citizens or those from U.S. allied states.
Armed with ASPA, that is not an idle threat. The fate of the court is worse than that of the judges in Colombia because while they only had to hide their faces, the ICC judges and prosecutors have to hide their thinking. They have to indulge in self-censorship. That’s called self-control. That’s called living in an unjust world made so not by the ones who we are told to hate but by the ones who claim to be civilized and democratic.
We live in a world where courts and judges are threatened, while known murderers are embraced and defended very publicly. Saudi Crown Prince Mohammad bin Salman is doubtlessly the man who ordered the killing of Washington Post columnist Jamal Khashoggi. Yet, he is defended by Trump. Benjamin Netanyahu is a major war criminal and a murderer of countless Palestinians. He is a major land grabber and has given the green light to various Jewish settlements on areas that the Palestinians want to include in their future state. Yet, to help his chances of winning the Israeli election, President Trump not only moved the U.S. Embassy to Jerusalem by recognizing it as part of Israel, but he also recognized Israel’s sovereignty over the Golan Heights.
The case of the Golan Heights
The Golan Heights were captured from Syria in the 1967 war in a move never recognized by the international community. Similarly, Egypt’s Gen. Abdel-Fattah el-Sissi has much blood on his hands. He came to power through a military coup, removing a democratically elected leader from power. There is even a U.S. law that forbids giving aid to any country where a military coup takes place. Yet, all that doesn’t matter, and selfish pursuit of interests trumps every morality, every law and all decency.
In the movie “Scent of a Woman,” in the final scene where Al Pacino is giving a mesmerizing speech to a group of school students and their teachers, at one place he mocks the school administration for rewarding one student for his cowardice yet punishing the other for his courage. When people who want to do justice are threatened with dire consequences and murderers are mollycoddled, it speaks volumes of where morality stands.
It is reminiscent of the Jallianwala Bagh massacre in April 1919 (exactly a 100 years ago this week) where Gen. Reginald Dyer ordered the killing of unarmed civilians, who were merely protesting in defiance of his orders against the public assembly.
Many protested against this act of aggression, including the first non-European Nobel laureate poet Rabindranath Tagore. He returned his knighthood in protest. To this day the U.K. has not apologized for that act of aggression. However, the real problem is that many in British society, including the House of Lords, hailed Gen. Dyer as a hero. The conservative press in London gave him a hero’s welcome on his return.
That is exactly why the ICC was created by the Rome Statute: When nations are unwilling or unable to prosecute the criminals among them that commit acts of aggression. So while courts are created that look nice on paper, it’s just a different method of preserving the same impunity for the worst aggressors. Before it was the Raj and the empire, now, while the word emperor is loathed, other bullying tactics are used against courts to preserve the same impunity. It’s about the feeling of superiority. Crimes are what others commit – not us. That punishment must touch others, not us.
I wouldn’t be surprised if this issue doesn’t even register a blip on the radar of Americans’ news consumption. So far, no American presidential hopeful has talked about it. And in the soon-to-start campaign season, I do not see anybody even touching upon it. Nevertheless, it is an important issue because the unchecked powers of a superpower are a threat for us all because it is the quintessential absolute power that can become corrupt at any moment and then nobody would be safe.