Can the International Criminal Court be saved from itself?

Thierry Cruvellier writes: Last month, the International Criminal Court opened two investigations, including a sensitive one in Afghanistan, and a call has been made to allow it to intervene in Myanmar. But such a flurry of announcements mainly testifies to the impasse at which the court finds itself.

On Nov. 20, after 11 desperately long years conducting a “preliminary examination,” Fatou Bensouda, the prosecutor of the International Criminal Court, formally requested authorization to investigate war crimes and crimes against humanity in Afghanistan thought to have been committed since 2003, after the United States-led invasion of the country.

It is a contentious move: Afghanistan recognizes the court’s jurisdiction, but the United States does not, and the I.C.C. is expected to investigate acts by American soldiers and C.I.A. personnel, along with some by the Taliban and Afghan National Security Forces.

The court was controversial from the moment it was created in 1998: Major states, including the United States, China and Russia, opposed its foundational treaty, the Rome Statute.

The I.C.C. has since come under repeated attack for being too slow, too accommodating to powerful states, inefficient and sloppy. It has gone after only Africans, indicted at most a few defendants in each of its eight concrete investigations, secured only four convictions and even botched investigations.

In November, the prosecutor also disclosed that she has opened an investigation into crimes committed in Burundi since April 2015 by state agents and the ruling party’s youth wing. Two days after the I.C.C. judges allowed the investigation, Burundi became the first country to formally withdraw from the court. There is meager hope of a significant outcome.

The fact that crimes were committed in Afghanistan is hardly in dispute. The Taliban, the office of the prosecutor wrote, has led “a widespread and systematic campaign of intimidation, targeted killings and abductions of civilians” perceived to oppose them, while the Afghan Army and police showed “systemic patterns of torture and cruel treatment” of war prisoners, including acts of sexual violence. Such acts are also alleged against United States agents and servicemen, principally in the 2003-04 period.

The problem is that none of the targeted authorities is likely to cooperate. The Taliban can’t be bothered with international justice. Despite being an I.C.C. member state, Afghanistan has shown no sign of commitment to a court that has no means to enforce arrest warrants.

The United States will at best ignore the I.C.C. or at worst be actively hostile, as it was during the early years of the George W. Bush administration, when it pressured more than a hundred states, including Afghanistan, to sign bilateral agreements not to surrender Americans to the I.C.C.

The I.C.C. will be able to claim that it no longer targets only Africans, which seems its primary motive to open the investigation now. But it will keep showing its powerlessness. [Continue reading…]

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