The U.S. and the ICC or How to Reform Global Institutions Without Dismantling Them

By Katie Dobosz Kenney

This article was originally posted in Political Insights.

The International Criminal Court came under fire this week as the United States sought to rebuke ICC investigations into itself and its allies, i.e. Israel and Guatemala. Katie Dobosz-Kenney examines the detrimental impact that undermining a judicial body such as the ICC can have on democracy as we know it.

The denunciation of the International Criminal Court by John Bolton is the latest in the Trump Administration’s aggressive push-backs against global institutions whose mandates do not align with the White House agenda. We do not exist in a post-impunity world, though that’s difficult to glean from the continued efforts, especially of the United States, to undermine entities pledged to justice and human rights. Corruption of varying degrees from election fraud to embezzlement, suppression of expression to blatant discrimination, ethnic cleansing, and deadly acts of aggression still occur around the world.

The US taking a unilateral and pointed position against the ICC and other UN justice commissions has drastic and far-reaching ramifications. In the absence of legitimate court systems, countries teetering on the edge of authoritarian regimes masquerading as democratically elected governments, indigenous and occupied communities with little access to legal recourse, and citizens of nations ravaged by endogenous and exogenous war crimes and crimes against humanity, the collective global efforts to end impunity are critical to the acquisition of justice for the most heinous of crimes.

The ICC was created in 1998 with adoption of the Rome Statute and was brought into effect after being ratified by 60 states in 2002; the United States was not among them. The ICC is intended to “complement, not to replace, national criminal systems; it prosecutes cases only when States do not or are unwilling or unable to do so genuinely.” The ICC’s jurisdiction is comprised of four crimesincluding, genocide, crimes against humanity, war crimes, and crime of aggression; the last of which took effect on July 17, 2018. There are 11 open cases at the ICC, 10 of which are on the African continent, and one in the former Soviet nation of Georgia.

The ICC, like any international body is not without its flaws. The hyper-focus on Africa is a long-standing criticism of the court, as many see it a political tool by the West to continue to exert control over African states. However, African nations were many of the ratifying states; functioning hybrid and international courts (i.e. Cambodia and the former Yugoslavia) have lessened the need for ICC intervention in other post-conflict judicial proceedings, even within the African continent. The Trump Administration’s condemnation of the ICC justifies the actions of states like Burundi, who quit the ICC to avoid prosecution and jeopardizes UN-backed regional tribunals like in the Central African Republic.

And yet, the United States’ primary concern is not bias against Africa, but the over-reach of the courts, including the preliminary investigations of the ICC, which include crimes in Afghanistansince May 2003 and in the occupied Palestinian territory since June 2014; the former which could implicate the United States and the latter could implicate the US’s longtime ally, Israel. In June 2018, the United States withdrew from the United Nations Human Rights Council over the organization’s perceived bias against Israel.

Article 8 of the Universal Declaration of Human Rights states that “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” For this to be true, each autonomous nation must have the ability and the willingness to prosecute crimes and the criminals who commit them. The reality of this human right is not ubiquitous. Communities, nations, and individuals without access to due process before their national court of law exist all around the globe.

September 10 in Guatemala, for example, President Jimmy Morales announced the dissolution of the International Commission Against Impunity in Guatemala (CICIG) and will not allow the head commissioner, Ivan Velasquez, re-entry into Guatemala. Subsequently, protests erupted. Hundreds of indigenous Guatemalans, who represent the interests of the approximate 6 million indigenouspeoples in Guatemala, systematically excluded from political process and victims of economic, cultural, and genocide during the civil war, took to the streets. The CICIG received its mandate in 2006 to prosecute corrupt government officials with strongholds on the government since the end of the civil war in 1996, the mandate did not include jurisdiction over the crimes committed during the war.

The expulsion of the CICIG could cause economic uncertainty, increase emigration, and perpetuate a culture of impunity and authoritarianism in Guatemala that the CICIG was attempting to mitigate. The United States’ policy on CICIG had long been one of support, but changed with the Trump Administration. Morales, an avid Trump devotee, has lobbied Congress and the White House to ensure their continued support against the CICIG; Morales even followed suit in moving the Guatemalan embassy to Jerusalem.

Additionally, on September 9, the United States closed the offices of the Palestinian Liberation Organization (PLO) in what could be regarded as retaliation for the PLO’s possible submission of a case against Israel to the ICC. There was little surprise in the decision given the cut of US funding to Palestinian refugees according to Palestinian official, Saeb Erekat. Additionally, the unprecedented acknowledgement of Jerusalem as the capital of Israel by the US, and the subsequent relocation of the US Embassy had strongly signaled the Trump Administration’s allegiance to the state of Israel. The PLO has indicated that the closing of their office (without statehood they are not able to operate embassies), will not interfere with their commitment to the peace negotiations with Israel, nor will it deter them from pursuing a case against Israel with the ICC. After all, justice through due process is integral to sustainable peacebuilding.

Less the 75 years ago, the tribunal at Nuremberg, Germany was the first international criminal court that sought to heal the wounds of war and genocide by prosecuting those who perpetrated the atrocities of the Second World War. These trials were followed by decades of post-colonial conflict that resulted in commissions and courts inspired by a new world order that necessitated political, economic, and judicial checks and balances at a global level. The faults of international bodies like the ICC or the UN deserve solutions equal to the value of the sentiments that founded them, namely the pursuit of global peace and the preservation of human rights. More than ever, we need global leaders who champion productive change to continue protecting the world’s most vulnerable communities, rather than attempting to irresponsibly dismantle them.

Katie Dobosz Kenney holds an MS in Global Affairs from New York University with a concentration in Peacebuilding. An educator for almost 10 years, Katie had developed global and peace education curricula in Florida, Mississippi, and Timor-Leste. Katie currently works as a graduate program administrator at NYU’s Center for Global Affairs and has co-led study abroad programs to South Africa and the UAE.

The opinions expressed in this article are the author’s own and do not reflect the views of their employer or Young Professionals in Foreign Policy.