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.”
ICC’s probe
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.
Trump kicks
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.
Double standard
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.
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