Hira Bahadur Thapa

In the wake of Cold War, proponents of liberal democracies were triumphant. They believed that liberal values would receive universal acceptance. Buoyed by success in ending the Cold War, the Western leaders emphasised the resuscitation of international tribunals to prosecute the perpetrators of gravest atrocity with a view to strengthen the rules-based system. Against this backdrop, the founding of the International Criminal Court (ICC) in 1998 marks the pivotal moment in international lawmaking because it is the first permanent court for dealing with gravest crimes. Before its establishment there were some tribunals to address serious crimes but all of them were set up on an ad hoc basis. Those international tribunals were limited to atrocities committed in Cambodia, Rwanda, and former Yugoslavia in the 1990s.
Being cognizant of the above tribunals, the jurisdiction of which was narrow, the international community shifted its focus to establishing a court like ICC that would deal with gravest crimes wherever committed. Considering this the UN asked the International Law Commission to draft law in connection with the ICC in 1994. Arduous negotiations on the subject continued until July 1998 when the UN members agreed to Rome Statute, a treaty that established the permanent court with wider jurisdiction.

ICC’s legitimacy
Years of protracted negotiations among the signers of the Rome Treaty resulted in the 60th ratification of the treaty in 2002. Consequently, the ICC treaty came into effect. Since then, the number of ratifying countries has gone up. A few major powers are reluctant to become parties to the treaty. China, Russia and the US are still outside the purview of Rome Treaty. Their decisions not to join the treaty and some other state parties’ espousal of double standards vis-à-vis the ICC have compromised the court’s legitimacy. It is a great setback to the humanity’s sincere efforts to curb atrocities.
The attitude of China, Russia and the US in not joining the ICC can be interpreted as their inner desire to see the court being placed under the supervision of the UN Security Council, where they hold permanent membership and thus exercise veto powers. During negotiations leading to the Rome Statute, the powerful members of the UN had lobbied for special relationship between the Security Council and the ICC, which could not materialise due to opposition of a large majority of the participating countries. They had preferred to see a role for the UN Security Council to decide whether to proceed with court’s investigation into cases of atrocities so that their privilege in the UN could be used as a shield for them to prevent their nationals from being prosecuted by the court.
Their failure to link ICC’s action to UN Security Council’s approval has dissuaded them from court’s membership. This exemplifies how powerful countries wish to be beneficiaries of their disproportionate power at the UN and choose not to join the court’s jurisdiction to avoid likely action by the ICC. In this vein it should not surprise us to find US government’s insistence that the court should not move with investigations into alleged crimes in Afghanistan, where their military and intelligence personnel have chances of being prosecuted.
The ICC’s investigation in Afghanistan focusses on alleged crimes committed in the country since 2003. It will likely cover the conduct not only of Taliban and Afghan national forces but also of US military and intelligence personnel. The strong reaction of the US government to ICC’s opening of investigation is evidenced by its decision to place sanctions against the court officials, which though has been rescinded by the Biden administration. However, the US government is hell bent on bullying the ICC personnel to not proceed with the investigation to determine whether US military and intelligence personnel are liable to be prosecuted under Rome Statute.
The ICC has been accused of bias for the western countries. The critics have produced the data of court’s convictions so far. 10 out of 14 active convictions involve Africa. The court is seemingly hesitant to open investigations involving the countries of the West. To counter such accusation it has started the process of opening investigation in the Palestinian territories which could explore whether Israeli forces committed war crimes during 2014 Gaza war. This investigation will simultaneously ascertain whether Hamas and other Palestinian groups have committed war crimes by firing rockets indiscriminately at Israeli towns.

Investigation
A group of countries including Australia, Canada, Germany, Israel and the US have put pressure on the court for dropping the investigation arguing that Israel is not a party to the ICC. Similar argument has been presented by the US with regard to the investigation in Afghanistan because the US has not yet joined the court. The court officials argue that ICC can invoke its provisions for starting investigation into crimes allegedly committed by personnel of non-party states if the country where the crimes are committed is a party to the treaty. Based on this interpretation it has the authority to proceed with the investigation in Afghanistan and the Palestinian territories.
The ICC receives funds from the wealthy liberal democracies in the West and feels constrained not to irk them lest it lose its resources to run the institution. But caving into their demands will make it very hard to disprove the assumption that the ICC enshrines a two-tiered international law system holding some countries to a standard but it does not require of others. On-going ICC investigations in the above two cases will be the litmus test of liberal democracies’ adherence to the rules-based system, the leadership of which has been reclaimed by the US. Will they behave as they preach is a question that attracts the world opinion?

(Thapa was foreign policy advisor to the Prime Minister from 2008-09. Thapahira17@gmail.com)