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OpEdNews Op Eds    H3'ed 3/10/20

Team Trump Tried to Bully the ICC Into Dropping War Crimes Probe But Failed

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Marjorie Cohn
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From Truthout

Secretary of State Mike Pompeo delivers remarks to journalists at the State Department.
Secretary of State Mike Pompeo delivers remarks to journalists at the State Department.
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After the prosecutor of the International Criminal Court (ICC) found a reasonable basis to believe that U.S. military and CIA leaders committed war crimes and crimes against humanity in Afghanistan, Team Trump threatened to ban ICC judges and prosecutors from the U.S. and warned he would impose economic sanctions on the Court if it launched an investigation.

Apparently succumbing to the U.S. threats, in April 2019, the ICC's Pretrial Chamber refused to authorize the investigation that prosecutor Fatou Bensouda had requested.

But in an unprecedented decision, the Appeals Chamber unanimously overruled the Pretrial Chamber on March 5, 2020, and ordered a formal investigation of U.S., Afghan and Taliban officials for war crimes, including torture, committed in the "war on terror."

Once again, the Trump administration is threatening the International Criminal Court. Following the Appeals Chamber's decision, Secretary of State Mike Pompeo declared, "This is a truly breathtaking action by an unaccountable political institution, masquerading as a legal body." He added, "The United States is not a party to the ICC, and we will take all necessary measures to protect our citizens from this renegade, so-called court."

Pompeo is likely referring to the American Service-Members' Protection Act, enacted during the George W. Bush administration after it removed the U.S.'s signature from the ICC's Rome Statute. The act contains a clause called the "Hague Invasion Act" that says if a U.S. or allied national is detained by the ICC, the U.S. military can use armed force to extricate the individual. Although this provision has not yet been utilized, the potential for its use is frightening.

Even if a country is not a party to the Rome Statute, its nationals can still be tried in the ICC if the crimes took place in the territory of a country that is a party. Thus, although the United States has not ratified the Rome Statute, the ICC still has jurisdiction over crimes committed by U.S. nationals in the territory of Afghanistan.

The impunity that U.S. officials have enjoyed for their international crimes may finally be coming to an end.

"Countries must fully cooperate with this investigation and not submit to any authoritarian tactics by the Trump administration to sabotage it," Jamil Dakwar, director of the ACLU's Human Rights Project, said. Responding to Pompeo's threats, Dakwar noted, "No one except the world's most brutal regimes win when the United States tries to impugn and sabotage international institutions established to hold human rights abusers accountable."

Prosecutor Found the U.S. Had a Policy of Torture

Bensouda found the alleged crimes by the CIA and U.S. military "were not the abuses of a few isolated individuals," but were "part of approved interrogation techniques in an attempt to extract 'actionable intelligence' from detainees." She noted there was "reason to believe" that crimes were "committed in the furtherance of a policy or policies ... which would support US objectives in the conflict of Afghanistan."

The Pretrial Chamber agreed with Bensouda that there were reasonable grounds to believe that, pursuant to a U.S. policy, members of the CIA had committed war crimes. They included torture and cruel treatment, and outrages upon personal dignity, as well as rape and other forms of sexual violence against those held in detention facilities in the territory of States Parties to the Rome Statute, including Afghanistan, Poland, Romania and Lithuania.

But the Pretrial Chamber denied Bensouda's request for an investigation "in the interests of justice" due to the "extremely limited" prospects for a successful investigation and prosecution because of an anticipated lack of cooperation from U.S. and Afghan authorities.

The Appeals Chamber Approves War Crimes Investigation

In its groundbreaking decision, the Appeals Chamber authorized the prosecutor to initiate an investigation "in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002."

It is not necessary that the criminal acts or apprehension of victims took place in the territory of Afghanistan. For example, if a person suspected of being a member of or associated with al-Qaeda or the Taliban was allegedly tortured or apprehended outside of Afghanistan, the war crime of torture could still be investigated.

The Appeals Chamber noted the Pretrial Chamber's agreement with the prosecutor that there was a reasonable factual basis and jurisdiction for an investigation. But the Appeals Chamber held that the Rome Statute did not authorize the Pretrial Chamber to make a finding that an investigation recommended by the prosecutor would not serve the interests of justice.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)

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