The United States (US) Department of State announced on Friday that it will revoke or deny visas to personnel from the International Criminal Court (ICC) who are investigating possible war crimes committed by US forces or its allies. Speaking to the press, Secretary of State Mike Pompeo stated, “The ICC is attacking America’s rule of law. I’m announcing a policy of US visa restrictions on those individuals directly responsible for any ICC investigation of US personnel. We are determined to protect the American and allied military civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation.”
The move makes good a threat made by Trump’s national security advisor John Bolton last September. In November of 2017, Special Prosecutor Fatou Bensouda announced her decision to request an authorization for the ICC to open a formal investigation into possible war crimes and crimes against humanity committed in Afghanistan. In a statement to NPR, her spokesperson reiterated, “Our view is clear: An ICC investigation with respect to U.S. personnel would be wholly unwarranted and unjustified. More broadly, our overall assessment is that commencement of an ICC investigation will not serve the interests of either peace or justice in Afghanistan.” The case could potentially include possible war crimes committed by the Taliban, the Afghan government and US military forces.
Bensouda’s report last year concluded there was a “reasonable basis to believe” that the US armed forces had subjected 61 detained persons to torture between May 2003 and December 2014. It also added that CIA members carried out similar acts to at least 27 detained persons within Afghanistan, a country that is a signatory of the Rome Statute and therefore eligible for ICC prosecution.
Formed in 1998 by the Rome Treaty as a tribunal to prosecute genocide, war crimes, and other crimes against humanity, the ICC has attempted to paint itself as a court of last resort. The probe would be a first for the court, which has historically focused on prosecuting cases from African countries, a trend that has drawn significant criticism in the past. For the Afghanistan case, the court would look into crimes starting in 2003, after the Rome Statute, an international agreement on which the ICC is based, went into effect.
The ICC has denounced Pompeo’s visa policy, arguing that such measures as their probe are needed to prosecute cases when a country fails to do a sufficient job of it on their own, according to the Associated Press. The Hague-based court has said it will not stop its investigation, stating that the “ICC, as a court of law, will continue to do its independent work, undeterred, in accordance with its mandate and the overarching principle of the rule of law.”
The US itself has signed but not ratified the Rome Statute. In 2001, President Bush passed the American Service Members Protection Act, which sought to protect US troops from potential prosecution by the ICC. John Bolton, who is currently President Trump’s National Security Advisor, spearheaded the movement against the ICC during the Bush administration.
Several human rights groups, including Human Rights Watch and the American Civil Liberties Union, have also criticized the US’s decision to revoke visas, with Human Rights Watch stating that “taking action against those who work for the ICC sends a clear message to torturers and murderers alike: Their crimes may continue unchecked.”
While many legal experts believe that the chance of American service members being charged and sent to face justice at the hands of the ICC are slim, the case is a strong reminder that the actions taken in Afghanistan have not been forgotten by the international community. The United States’ move is deeply troubling in an environment of increasingly globalized justice. It again highlights the US’ continuous refusal to accept international norms and further isolate itself from the rest of the world.
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