Created in Rome in 1998, the permanent International Criminal Court (ICC) aims at ending impunity by punishing perpetrators of serious crimes. The ICC was tasked with investigating and prosecuting war crimes, crimes against humanity, acts of genocide and crimes of aggression committed on the territories of its member states or by their nationals, or whatever else was asked by the UN Security Council. Different from International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal in Rwanda (ICTR), the court was set up following multilateral negotiations with the signatories of Rome Statute.
Uniquely, ICC sits at the intersection of war and peace, politics and law, and thus attracts enemies, as articulated by David Kaye in his Foreign Affairs (2011) piece “Who is Afraid of ICC?” His observation is seemingly prompted by successive US administrations’ ambivalent policy regarding ICC. Besides refusing to join the ICC, the US government has been hostile to the forum since its birth, which came into effect in July 2002.
In a review of the book Means to an End: US Interest in International Criminal Court by Lee Feinstein and Tod Lindberg, Professor G John Ikenberry’s states that the debate over ICC in America is divided between those who emphasize the “global governance” virtues of membership, and those who, in opposing membership, wave the flag of sovereignty. Ikenberry quotes the aforementioned writers who contend that the ICC could also serve US’s national interests, for cooperation with it would improve relations with close allies and military partners.
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The initial resistance to the ICC by the Bush administration, which surprisingly withdrew its signature of the Rome treaty in 2002, has been declining in the recent past. One example is the American support of UN Security Council’s referral of the Libyan situation to the ICC. The US voted for the UN Security Council resolution in February, 2011, which referred then Libyan leader Muammar el-Qaddafi and his close associates to the ICC. Ambivalently, the US has not been cooperative in having the ICC investigate and prosecute the intelligence chief, among others, of the ousted regime.
The on-again off-again approach towards ICC by a leading world power like the US has undermined the permanent court’s authority. The American administration has sometimes flexed its muscles to deny the ICC its due role, which struggles to establish a regime of accountability. Other world powers with veto rights in the UN Security Council have also joined the ranks of the US. By not signing and failing to ratify the court’s charter, both China and Russia have demonstrated their reluctance to adhere to the norms of global accountability. But a few examples of US administration’s actions, especially during the presidency of George W Bush, expose how critical America has been to the working of the permanent court.
In the year 2003, John Negroponte, then US envoy to the UN, had issued a threat that if the UN Security Council did not immunize American peacekeepers from prosecution by the ICC, his country would shut down UN Peacekeeping from Bosnia to Guatemala. American soldiers are the most frequently deployed peacekeepers in various trouble spots of the world, especially in US-led missions which receive the blessings of the UN through Security Council resolutions. Interestingly, US peacekeepers do not consent to serve in missions not headed by US Army Generals. Obviously, their concentration is seen in NATO-led missions like the one in Afghanistan, where the US Army calls the shots. During Bush administration, a large number of small and weak nations in Asia and Africa were arm-twisted to sign a pact with the American government to refrain from surrendering US citizens to The Hague (where the ICC is headquartered). What could be a more potent example of bullying?
China, Russia and the US among the five permanent members of UN Security Council, and many other countries including India and Nepal have decided not to join the ICC, purportedly to protect their nationals from being prosecuted, investigated and convicted by the court. However, what applies to the veto-wielding world powers will not necessarily apply to a poor, least developed country. Those who craft national policies—foreign policy in particular—need to reconsider if Nepal’s decision not to sign the Rome Statute will forever shield her nationals from the ICC. Ominously, a few weeks before surrendering power to a Chief Justice-led and bureaucrat-dominated election government, former prime minister Baburam Bhattarai publicly stated that he would have been prosecuted already by the ICC had he not been secure in his post.
If future UN resolutions refer Nepali nationals to the ICC, Nepal has no insulation from it, unlike members of UN Security Council.
As per the Rome Statute, the court does not go after crimes committed before the ICC was created. But make no mistake, non-membership of the court is no guarantee that cases of genocide, crimes against humanity, or war crimes would not be filed against the nationals of a country. Otherwise, the ICC would not have issued an arrest warrant against Omar al-Bashir, the president of The Sudan, in 2011. It was done because the UN Security Council decided to refer his case to the ICC.
There is, however, hypocrisy in how the UN organ, entrusted with the fundamental responsibility of maintaining world order, handles its duty. Big power bullying is the order of the day, and that is why the permanent members of the UN Security Council often use the ICC selectively. In a blog piece “The World Court verses American Right” carried by Foreign Policy magazine, Colum Lynch says that the UN Security Council has routinely passed resolutions that expand the scope of the ICC. According to him, in 2012 alone the UN cited the ICC nine times. This is a long departure from UN’s past behavior.
If future UN resolutions refer Nepali nationals to the ICC, Nepal has no insulation from it, unlike incumbent and prospective permanent members of the UN Security Council which have the luxury. Humiliatingly, Nepal was caught unawares when a Colonel was arrested in the UK for alleged torture. Nepal should treat the ICC as a global forum for justice, and her true commitments to abide by the global norms of accountability would enhance her international image rather than the other way around.
The author was Foreign-Relations Advisor to former Prime Minister Pushpa Kamal Dahal
thapahira16@gmail.com
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