ICC President Condemns 'Unprecedented' U.S. Attack on International Court

President Donald Trump announced earlier this month that his administration will issue sanctions against International Criminal Court (ICC) officials who attempt to investigate reports of war crimes committed by U.S. troops in Afghanistan and impose visa restrictions on those officials and their families.

The investigation in The Hague will look at reports of misconduct by the Taliban insurgency, Afghan government forces and U.S. military and CIA personnel since May 2003, as well as other U.S. abuses related to this conflict that took place in other countries part of the ICC since its July 2002 founding. Although the United States is not a party to the Rome Statute that established the ICC, Afghanistan is.

The probe was initially shut down, but Prosecutor Fatou Bensouda won an appeal to move forward in March, angering Trump and his top officials who have accused the ICC of corruption and promoting the interests of countries adversarial to the United States.

In an exclusive interview with Newsweek, ICC President Judge Chile Eboe-Osuji explains how the institution that is supported by 123 countries will move forward despite threats by the U.S.

The interview has been edited lightly for style and length.

1. What is your reaction to the United States' decision to sanction ICC officials involved in investigations of U.S. and allied personnel and to implement visa restrictions for them and their families?

"Sanction" is the wrong word. In context, "sanctions" are used to punish countries and entities accused of sponsoring terrorism, violating human rights or the nuclear non-proliferation treaty. The U.S. exactions are unprecedented in international law and contrary to it. It sets the wrong example for the leadership of any other country whose leadership feels their interests threatened by the work of the ICC. It also encourages similar attacks against judiciaries at the national level. In any system in which the rule of law is respected, courts are never coerced. They may be criticized – even robustly. But never coerced.

2. If the U.S. moves forward with sanctions, does the ICC plan to take any measures in response?

The Court was created by the international community, mindful of a chronicle of human history in which "children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity." The reason for creating the ICC was to afford a place where the future victims of these atrocities will have access to justice, where that access has been unavailable elsewhere. The matter of what must be done in response to acts of coercion against the Court will be for the 123 countries that are members of the ICC treaty—the Rome Statute. We are acting on their mandate. They fund the Court and support it. An attack against the ICC is an attack against them. The States Parties include, for instance, all 27 members of the European Union plus the United Kingdom, who are among the Court's strongest supporters

In the last two weeks, there has been an outpouring of staunch support for the ICC, and widespread condemnation of the latest US announcement; not only from our States Parties but also from numerous professional associations, such as the American Bar Association, the International Bar Association and New York City Bar Association. It is hoped that beyond the general condemnations, more concrete actions will be taken to counter these acts of coercion.

3. How will this threat to impose sanctions and visa restrictions affect the Court's ability and influence its motivation to carry out certain investigations?

These threats started in September 2018. We said we would do our work undeterred, independently, and impartially. That remains our position. We cannot lose sight of the purpose of the ICC, which is to ensure accountability for atrocious crimes, to help prevent such atrocities from happening in the future, and to bring justice to the victims.

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Judge Chile Eboe-Osuji, president of the International Criminal Court President Judge, attends a hearing of the ICC Appeals Chamber in The Hague, Netherlands, March 9. International Criminal Court

4. Among the many criticisms listed by senior officials of President Donald Trump's administration was Secretary of State Mike Pompeo's assertion that the ICC in its years of operation and after $1 billion has produced only four successful convictions in major criminal cases, a sign of its inefficiency, he argued. How do you respond to this claim?

It is obvious that this allegation is introduced to detract attention from the main issue, which is that one of the oldest democracies in the world—a leading light amongst nations—is embarked upon a course of conduct unheard of on their part before—coercion against a court of law, in this case an international judicial institution that seeks accountability for the gravest crimes known to humankind.

As for the ICC's track record, the question is not whether $1 billion or $2 billion has been invested in the ICC all through its 18-year lifetime. On the basis of the latter figure, the average annual budget would be $112 million. It is smaller than the annual budget of the Police Department of a mid-size city in the United States. That is a modest price indeed for a permanent global institution that anchors the international community's normative commitment and practical efforts to afford a last refuge of justice for genocide, crimes against humanity, war crimes and the crime of aggression.

None of this is to say that the ICC has no room for improvement...For that very purpose, since last year we have been conducting, together with our States Parties, a wholesale review of the Court's functioning with a view to identifying lessons learned and concrete areas and measures for improvement.

5. U.S. Attorney General William Barr said the ICC was a "political tool employed by unaccountable international elites" and that Russia may be "manipulating" the Court. How do you respond to these allegations and how is the ICC able to ensure an impartial approach both in its deliberations of specific cases and its choice of which cases to take on?

I do not feel called upon to comment on such political slurs. It is enough to say that it is not unusual for politicians to engage in a smear campaign against judges and courts of law when they do their work as their conscience dictates. The "political" motive has also been imputed against U.S. judges doing their work. In the U.K., judges have even been called "enemies of the people."

The ICC's track record is open for anyone to scrutinize...Under the ICC's legal framework, there is a range of mechanisms, put in place by the States Parties to the Rome Statute, to deal with any substantiated allegations of inappropriate conduct by ICC officials—including criminal prosecution.

6. Each U.S. official that spoke emphasized the fact that the United States' own judicial institutions both military and civilian were more well-equipped to handle cases involving U.S. nationals than the ICC. In what ways do you feel the ICC is a better option for such cases?

In terms of competence, no judicial system is more robust than America's. And no one claims that the ICC is a better option. As it happens, we actually want them to exercise jurisdiction, by investigating and prosecuting persons accused of a violation. If the U.S. institutions do that, there will be no jurisdiction for the ICC. Let me be very clear that there has not been a judicial determination at the ICC to the effect that the United States cannot conduct such proceedings. If the U.S. considers that it is adequately addressing the allegations of crimes through its own courts, or that they have done that already, then this is the moment to inform the Court and bring that question before the judges. There is a clear legal mechanism for doing that, and so far the United States has not availed itself of that path.

7. While the Obama administration did not sign the Rome Statute, it adopted "observer status" and maintained "positive engagement." Does the ICC expect any future Biden administration to do the same even if the investigation into U.S. operations in Afghanistan proceeds?

I will not discuss national politics, and I will not comment on any elections. But I will say the following. We expect U.S. administrations of whatever political party to consider assisting the ICC in its mandate to attend to justice for the sake of victims of genocide, crimes against humanity, war crimes and crimes aggression. The U.S. led the way in laying the foundation stone to the creation of the ICC. Some of the early architects of the system were Justice Robert H. Jackson and Judge Francis Biddle—fully supported by President Truman. They built upon the Nuremberg legacy. In 1993, the U.S. Senate called upon the U.S. Government to support the creation of the ICC, because it will "greatly strengthen the international rule of law" and thereby "serve the interest of the United States and the world community." That remains the case.

8. China, like the United States, is not a member. Is the ICC's relationship with Beijing under President Xi Jinping better, worse or the same as with Washington under President Donald Trump?

Like the United States, China is not a State Party to the Rome Statute. However, it has not taken coercive action against the ICC, even though it has occasionally expressed displeasure with some ICC work in some parts of the world. Russia, too, has expressed displeasure with ICC work in some places but has never taken coercive action against the Court.

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U.S. Secretary of State Mike Pompeo (C) holds a joint news conference on the International Criminal Court with (L-R) Attorney General William Barr, Defense Secretary Mark Esper and National Security Advisor Robert O'Brien, at the State Department in Washington, D.C., on June 11. President Donald Trump earlier that day ordered sanctions against any ICC official who prosecutes U.S. troops as the tribunal looks at alleged war crimes in Afghanistan. Yuri Gripas/AFP/Getty Images

9. One recurring criticism of the ICC is that the Court disproportionately targets individuals in Africa, how would you explain the reason for the high number of cases located on the continent in contrast with other parts of the world?

I have always rejected the complaint that the ICC should not do its work of providing access to victims of alleged atrocities, wherever they are. Be it in Africa, in Afghanistan or elsewhere. Victims should have access to justice. It is better for people and governments to spend their energy and time doing justice at home than to spend their time complaining that the ICC is determined to do justice when no other country has done it.

10. How would you evaluate the ICC's overall performance since its inception and what improvements would you like to see in the next two decades?

With 123 States Parties, dozens of cases, 13 ongoing investigations and nine preliminary examinations on all continents, the Court is a full part of a worldwide system of accountability. The ICC's cases so far have involved convictions and charges ranging from brutal attacks on civilian populations to the destruction of cultural heritage by terrorist groups, and from the use of child soldiers to sexual violence in conflict. The ICC's track record so far has strongly demonstrated the Court's independence; the fact that the judges have in numerous instances ruled against the ICC Prosecutor—including handing down verdicts of acquittal as well as verdicts of conviction—is ample evidence of that impartiality.

Like every other international institution, the ICC is, of course, hampered by the inherent challenges of systems of international law and international cooperation. But the world would be much the worse without these systems.

11. With Russia's withdrawal in 2016, most of the great powers, including India, China and the United States are not members of the court. In addition, several smaller countries including South Africa and the Philippines have threatened at times to pull out. Does the Rome Statute need to be reformed to create a more sustainable international partnership such as that which exists at the U.N. Security Council?

First, it is important to keep U.S. non-participation in context. They are famously slow in joining international treaties. There are many international treaties earlier than the Rome Statute that they have not joined. It took them 40 years to join the convention against genocide. They are yet to join the Convention on the Rights of the Child adopted in 1989. Second, despite some mistaken news headlines—the Russian Federation never was party to the Rome Statute and therefore never was a member state of the ICC. So, it could not have "withdrawn" from what it was never a party to. Russia had signed the Statute, which in international law signals only an intention to join a treaty. In 2016, much like Israel, Sudan and the United States had done previously, the Russian Federation officially communicated that it no longer intended to become party to the Rome Statute. That is all. Let me stress that the ICC takes great care to respect the sovereign prerogative of each State to decide for itself whether or not to join or to withdraw from the Rome Statute, as is indeed is the case with any treaty. We would, of course, encourage them to join the treaty for the sake of our shared humanity.

Here, I should invoke the words of an eminent American jurist Justice Robert H. Jackson who once observed that "those who best know the deficiencies of international law are also those who know the diversity and permanence of its accomplishments, and its indispensability to a world that plans to live in peace."

As for your question about reforming the Rome Statute, that is a question for the Assembly of States Parties to the Rome Statute and its 123 members. Only they can amend the Statute; the Court has no role and no say in that—except to make suggestions. I should recall, perhaps, that the Rome Statute, like any other multilateral treaty, is a compromise, an amalgam of views, proposals and outlooks from numerous states, in this case far more than a hundred states, including the United States, which had a prominent role in the negotiations. As part of that compromise, the Rome Statute came to include a range of checks and balances to prevent frivolous or malicious prosecution by the Court, while still empowering the Court to play a central role in the international criminal justice system for the sake of victims, humanity, and future generations. That mission is why I call on all States to join the ICC.