President Donald Trump, on Thursday, signed an executive order placing restrictions on officials of the International Criminal Court (ICC) over the court’s decision to investigate allegations of human rights violations against America’s troops in Afghanistan.
The order states that individuals who “have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States” or have attempted the same against a U.S. ally without that country’s consent may be subject to sanctions.
This development, which has been condemned by prominent global institutions and individuals, appears a contravention of America’s avowed stance against impunity and human rights abuses.
The ICC, in its response, has also described the step as an attempt by Mr Trump’s administration “to strong-arm the international body out of an investigation into potential war crimes by US military and intelligence officials.”
The international tribunal called the action “the latest in a series of unprecedented attacks on the ICC” that “constitute an escalation and an unacceptable attempt to interfere with the rule of law and the Court’s judicial proceedings.”
According to the international court, the office of its president received numerous communications on the situation in Afghanistan over allegations of human rights abuses including but not limited to murder, severe deprivation of physical liberty, cruel treatment, carrying out of executions without proper judicial authority, and intentional attacks against civilians.
These allegations, which were levelled against both pro-government and anti-government forces in the armed conflict rocking Afghanistan, are said to fall under Article 15 of the Rome Statute, which formed the legal pillar for the establishment of the international prosecution body.
America had sent troops to Afghanistan following the September 11, 2001 terrorist attacks on the country and the alleged refusal of the then Afghanistan’s Taliban government to extradite the late leader of Al-Qaeda organisation, Osama bin Laden, for prosecution in the U.S.
A narrative by the ICC on its website over the planned investigation, states in part; “On 20 November 2017, the Prosecutor had requested authorisation from Pre-Trial Judges to initiate an investigation into alleged war crimes and crimes against humanity in relation to the armed conflict in the Islamic Republic of Afghanistan since 1 May 2003, as well as regarding similar crimes related to the armed conflict in Afghanistan allegedly committed in the territory of other States Parties to the Rome Statute since 1 July 2002.”
The court noted that the request was, however, in April, 2019, rejected by the pre-trial judges; the decision was appealed by the Gambia-born prosecutor, Fatou Bensouda.
Thus on March 5, 2020, “the Appeals Chamber of the International Criminal Court decided unanimously to authorise the Prosecutor to commence an investigation into alleged crimes under the jurisdiction of the Court in relation to the situation in the Islamic Republic of Afghanistan.”
The court said since Afghanistan had deposited its instrument of accession to the Rome Statute on February 10, 2003, it is empowered to exercise its jurisdiction over crimes listed in the Statute committed on the territory of Afghanistan or by its nationals from May 1, 2003 onwards.
Earlier in 2019, the administration of Mr Trump revoked the U.S. entry visa of Ms Bensouda as immediate response to her probe plan, warning that other staff of the court could suffer a similar fate if they get involved in such probes.
The U.S. Secretary of State, Mike Pompeo, had said: “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 will still have or get a visa, or that you will be permitted to enter the United States,” adding that; “We’re prepared to take additional steps, including economic sanctions if the ICC does not change its course.”
Therefore, on Thursday, after signing the executive order, the White House press secretary, Kayleigh McEnany, said in a statement that; “The International Criminal Court’s actions are an attack on the rights of the American people and threaten to infringe upon our national sovereignty,” adding that; “As the President’s Executive Order makes clear, the United States will continue to use any means necessary to protect our citizens and our allies from unjust prosecution by the International Criminal Court.”
Similarly, Mr Pompeo, while speaking at the State Department, said; “We cannot and we will not stand by as our people are threatened by a kangaroo court.”
He added that the economic sanctions indicated in the order, would be determined on a case-by-case basis. He also said the visa restrictions would include family members of the targeted officials.
“It gives us no joy to punish them, but we cannot allow ICC officials and their families to come to the United States to shop, travel, and otherwise enjoy American freedoms as these same officials seek to prosecute the defender of those very freedoms,” Mr Pompeo said.
CNN also quoted America’s Defence Secretary, Mark Esper, as saying that the administration expected “information about alleged misconduct by our people to be turned over to US authorities so that we can take the appropriate action as we have consistently done so in the past.
“Ultimately, our justice system ensures that our people are held to account under the United States Constitution, not the International Criminal Court or other overreaching intergovernmental bodies,” Mr Esper said.
President Trump’s action to block the investigation by the ICC has been seen by many as a contrast to America’s perceived “meddlesomeness” in the affairs of other nations of the world.
The step is said to ridicule the country’s acclaimed quest for equity, justice, and fairness outside its shores.
For instance, in the past 44 years, America has been consistent with its Country Reports on Human Rights Practices annual publication, which reviews and details human rights situations in more than 200 nations across the continents.
In his foreword to the 2019 edition, which was released on March 11, the Secretary of State wrote that the publication is aimed at demonstrating observance of, and respect for internationally recognised human rights and fundamental freedoms.
“By publishing these reports, we reaffirm the United States’ longstanding commitment to advancing human rights and fundamental freedoms,” Mr Pompeo wrote.
The report, which focuses on more countries across all the continents, noted that in the year under review, significant human rights abuses such as arbitrary killings, forced disappearances, torture, and arbitrary detention, allegedly committed by both government and non-state actors, were recorded in Nigeria.
It, however, noted that in spite of logistic challenges recorded during the country’s 2019 general election, the return of President Muhammadu Buhari was in tandem with the observations of many independent observers.
The report added that Nigeria also recorded; “…harsh and life-threatening prison conditions; unlawful infringement on citizens’ privacy rights; criminal libel; violence against and unjustified arrests of journalists; substantial interference with the rights of peaceful assembly and freedom of association in particular for lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons and religious minorities; widespread and pervasive corruption; crimes involving violence targeting LGBTI persons; criminalisation of same-sex sexual conduct between adults; and forced and bonded labour.”
The U.S. position on the matter has, therefore, been said by many to depict the country’s double standard.
Earlier in November, 2019, Mr Trump had also pardoned two Army officers accused of war crimes, one of whom was still set to stand trial.
He was also reported to have restored the rank of a Navy SEAL convicted of posing with a dead “Islamic State” captive.
We’re undeterred –ICC
In a statement issued soon after Mr Trump’s decision was taken, the ICC expressed “profound regret at the announcement of further threats and coercive actions, including financial measures, against the Court and its officials, made earlier today by the Government of the United States.”
The statement, which was signed by the court’s head of public affairs unit, Fadi El Abdallah, further said; “These attacks constitute an escalation and an unacceptable attempt to interfere with the rule of law and the Court’s judicial proceedings,” adding that; “They are announced with the declared aim of influencing the actions of ICC officials in the context of the Court’s independent and objective investigations and impartial judicial proceedings.”
“An attack on the ICC also represents an attack against the interests of victims of atrocity crimes, for many of whom the Court represents the last hope for justice.”
“The ICC stands firmly by its staff and officials and remains unwavering in its commitment to discharging, independently and impartially, the mandate bestowed upon it by the Rome Statute and the States that are party to it,” the statement said.
In a separate statement, the president of the Assembly of States Parties, the court’s management oversight and legislative organ, O-Gon Kwon, said Mr Trump’s action undermines the world’s common “endeavor to fight impunity and to ensure accountability for mass atrocities.”
“I deeply regret measures targeting Court officials, staff and their families,” Kwon said, adding that; “I will convene an extraordinary meeting of the Bureau of the Assembly next week to consider how to renew our unwavering commitment to the Court.”
America’s action a tragedy – Don
A professor of International Relations and Strategic Studies at the University of Lagos (UNILAG), Akoka, David Aworawo, described the U.S. action as one of the tragedies of international policies.
Mr Aworawo said the lack of “catastrophic consequences” for powerful countries’ disregard for international laws and norms has emboldened America to sanction ICC officials.
The don said, “Since 1648 when the modern international system evolved, the international actors have struggled to compel powerful states to be committed to international laws which is regarded as a major factor in maintaining international stability. Unfortunately, the weak mechanism for enforcement of international law has created the avenue for powerful states like the United States to break international law with impunity.
“That is what has happened in the case of what Trump has done regarding some of the actions America’s troop in Afghanistan took. It is common knowledge that some of these troops who have gone for international assignments have been excessive in their use of force and committed great infractions as far as protection of human rights are concerned. The American President is aware of it and he quickly did that so that the American troops will not be made to pay for what they have done in Afghanistan.”
Mr Aworawo, however, said the less powerful nations cannot afford to toe such path of disregard for international laws, saying it could lead to anarchy and that the weaker nations will continue to suffer the consequences.
“Apart from providing them the moral right to condemn such actions by the powerful nations, when less powerful countries obey all international protocols and laws, they are shielded from the anarchy they may break out,” the lecturer said.