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US Must Remain Wary of International Criminal Court Even After Decision to Not Target

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US Must Remain Wary of International Criminal Court Even After Decision to Not Target

On 04.12.19 05:10 PM posted by Brett Schaefer

sAfter nearly 18 months of deliberations, the Pre-Trial Chamber of the International Criminal Court (ICC) decided on April 12 to reject the request from ICC prosecutor Fatou Bensouda to open an investigation into war crimes and crimes against humanity allegedly committed in Afghanistan since May 2003.

This is a long overdue and welcome decision for the U.S. andremoves, for the moment, the troubling prospect of the ICC issuing warrants forU.S. officials and military personnel.

Nonetheless, it is worth noting that the Pre-Trial Chamberagreed with the prosecutor that the situation in Afghanistan was justifiedbased on both jurisdiction and admissibility, but was nonetheless rejected dueto concern the International Criminal Court would not be able to try the case successfullydue to: inadequately preserved evidence; poor prospects for “securingmeaningful cooperation from relevant authorities”; and having to reallocatelimited financial and human resources to this investigation and away from “otherscenarios … which appear to have more realistic prospects to lead to trials andthus effectively foster the interests of justice, possibly compromising theirchances for success.” With these concerns in mind, the Pre-Trial Chamberconcluded:

In summary, the Chamber believes that, notwithstanding thefact all the relevant requirements are met as regards both jurisdiction andadmissibility, the current circumstances of the situation in Afghanistan aresuch as to make the prospects for a successful investigation and prosecutionextremely limited. Accordingly, it is unlikely that pursuing an investigationwould result in meeting the objectives listed by the victims favoring theinvestigation, or otherwise positively contributing to it.

In other words, the rejection because of practical concerns,not legal ones. As notedby the Office of the Prosecutor,
The Office of the Prosecutor notes that the Judges of Pre-Trial Chamber II are satisfied that there is a reasonable basis to believe that crimes under the jurisdiction of the International Criminal Court have been committed in Afghanistan, and that the requirements of gravity and complementarity have been met.* The Pre-Trial Chamber then refused to authorize an investigation on its assessment of the interests of justice.* The Office will further analyze the decision and its implications, and consider all available legal remedies.

The possibility of an appeal exists. However, it is reassuringthat even International Criminal Court advocates believe that the basis of thedecision – that opening an investigation is not in the interests of justice –makes a successful appealof the decision unlikely.

Following the decision, Secretary of State Mike Pompeo noted,“This decision is a victory for the rule of law and the integrity of the ICC asan institution, given the United States is not subject to the ICC’sjurisdiction.” It is indeed a victory, but it does not resolve the fundamentalconflict between the U.S. and the International Criminal Court.

Regardless of the Afghanistan decision, the InternationalCriminal Court still claims authority to investigate the U.S. in certaincircumstances despite the U.S. not being a party to the Rome Statute, rejectingICC jurisdiction over U.S. persons, and taking steps to insulate itself fromICC jurisdiction. Although the U.S. has occasionallysupported ICC efforts to bring criminals to justice, the U.S. has repeatedlyrejectedthe Court’sclaimsof jurisdictionand keptthe ICC at arm’s length even under President Barack Obama.

Although the immediate dispute appears to be resolved, theU.S. could again find itself in a similar dispute with the InternationalCriminal Court. The decision does not amend the Rome Statute, reform the InternationalCriminal Court, or alter the jurisdiction of the ICC to prevent the Court from investigatingsimilar cases in the future.

This underscores the wisdomof the U.S. decision to forego ratification of the Rome Statute, enact lawscircumscribing U.S. engagement with the ICC, and recent decisions that, in thewords of Pompeo,“protect allied and American military and civilian personnel from living infear from unjust prosecution for actions taken to defend our greatnation.”

Although this experience and other recentsetbacks forthe ICC should lead the ICC and States Parties to reevaluate the trajectory ofthe Court, this is far from certain. As it stands, President Donald Trump iscorrect to warn,“Since the creation of the ICC, the United States has consistently declined tojoin the court because of its broad, unaccountable prosecutorial powers; thethreat it poses to American national sovereignty; and other deficiencies thatrender it illegitimate. Any attempt totarget American, Israeli, or allied personnel for prosecution will be met witha swift and vigorous response.”

The post US Must Remain Wary of International Criminal Court Even After Decision to Not Target Americans appeared first on The Daily Signal.



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