Threats to the International Criminal Court are much more dangerous this time,” says convenor William Pace of the Coalition for the International Criminal Court. “Under the current Trump administration everything is possible.”

This statement by Tiberio Graziani is delivered by our Diplomatic Council Partner Diplomat Magazine.

William Pace leads the Coalition for the International Criminal Court (CICC), an international non-governmental organisation with a membership of over 2,500 organizations worldwide advocating for a fair, effective and independent International Criminal Court (ICC). Although the ICC is supported by as much as 123 member states, including all countries from the European Union, it hasn’t succeeded in getting the United States, Russia, China, India and Israel on board. What’s more: ever since the court began operations in 2002 the United States has taken several measures to make sure no American will ever be brought to justice in The Hague. 

In that year US Congress passed the American Service-Members’ Protection Act, nicknamed ‘The Hague Invasion Act’. It mandated, among other things, the use of “all means necessary and appropriate to free US or allied personnel detained by or on behalf of the ICC.” Moreover, in September 2018,US national security adviser John Bolton threatened the ICC with sanctions and to criminally prosecute ICC officials – if the court formally proceeded with opening an investigation into alleged war crimes committed by US military and intelligence staff during the war in Afghanistan or pursued any investigation into Israel or other US allies. 

Do you think the Prosecutor of ICC, Fatou Bensouda, finally will get authorisation to open an investigation into war crimes and crimes against humanity in Afghanistan allegedly committed by American nationals?

I think it will be very difficult for the judges to not approve opening the Afghan investigation. But that’s just an opinion on the basis of all the crimes against humanity and the war crimes that have occurred there since 2002.

It would be extremely unusual if an investigation into the Taliban and ISIS wasn’t agreed to. Whether the extraordinary renditions are included by the judges I can’t say. I expect in the next two or three weeks we’ll see the judgement released. 

(Extraordinary renditions are abductions and extrajudicial transfers of persons in Afghanistan to Guantánamo Bay and CIA black sites with the purpose of circumventing US laws on interrogation, detention and torture, EvdB) 

Do you think the judges may not authorize Mrs. Bensouda to investigate the American rendition part because of the recent threats from Mr. Bolton?

I don’t know if the judges pay any attention to the threats of Bolton. I hope they don’t. But I do think Mr. Bolton will do whatever he can get away with. He is fanatically against an International Criminal Court, and he was a key architect behind the The Hague Invasion Act back in 2002. 

What if crimes allegedly committed by American forces won’t be investigated? What will this do to the support for ICC from African countries? The ICC has been accused by some of them of being a tool of Western imperialism, only punishing leaders from small, weak states while ignoring crimes committed by richer and more powerful states.

I think the credibility of the court is absolutely dependent on the Prosecutor and the judges going after anyone who’s committed crimes where they have jurisdiction, regardless of the region or nationality of the accused. The US, Russia and Israel may not have ratified, still the court has jurisdiction over crimes committed by American, Russian and Israeli nationals if committed on the territory of countries that have ratified ICC’s Rome statue. Since Afghanistan has ratified the Rome treaty, the court has jurisdiction over all crimes committed on Afghan territory, be it by Afghan nationals or American nationals. A lot of the complaints of ICC opponents in Africa ignore such jurisdictional conditions of the Rome statue. 

Now that Palestine has ratified, the Prosecutor would be investigating alleged Palestinian crimes just as she would investigate alleged Israeli crimes. Georgians believe Russia is responsible for crimes committed on their territory, and since Georgia is a state party, ICC has jurisdiction over alleged crimes of Russian nationals on Georgian territory. 

What if Fatou Bensouda doesn’t get authorisation to open an investigation into crimes allegedly committed by American forces? Could this possibly lead to an exodus of African countries?

There’s much more support for the ICC in Africa than academics and the media have been reporting for years. Two years ago Kenya, Sudan and others were calling for mass withdrawal. Sixteen governments in the African Union openly rejected this effort. 

Also, most African governments are very dependent on American assistance and commerce that they are not going to criticize the court for not bringing American leaders or even soldiers to justice. And interestingly the criticism by Africans against the court mostly affected western views about the court. It had very little effect on South American or Asian views. 

Do you think ICC feels protected by the Dutch government and European Commission? Is ICC satisfied with the way The Hague and Brussels reacted upon anti-ICC actions and statements that have coming from Washington since 2002?

Even with the current conservative Dutch government and the current Dutch Prime Minister, Mark Rutte, praising President Donald Trump, the Dutch government has been extremely strong in supporting the Rome statue and the ICC. The European Union also has been tremendously supportive. 

Openly supporting ICC is one thing. Have to your knowledge The Hague and Brussels ever openly disapproved of aggressive statements and actions of the US directed at ICC, starting in 2002 with the The Hague Invasion Act? 

Most of the strategy was quiet, I think because the The Hague Invasion Act was adopted so soon after the September 11 attacks on the United States. Most governments were not willing to openly criticize the Bush administration. 

After Obama got elected Dutch Minister of Foreign Affairs, Maxime Verhagen, went to Washington to persuade the American Congress to get rid of the The Hague Invasion Act, without success. 

They did reset a number of provisions of the American Service Members’ Protection Act when it was hurting their military cooperation with countries and military sales, but they didn’t get rid of the The Hague Invasion provision. 

The Hague and Brussels support ICC, but they also want to keep good relations with Washington. Are they willing to put their relations with Washington at risk for the protection of ICC?

That’s one of the fundamental questions we’re watching. We’re in the midst of an extraordinarily dangerous retreat from the principals of multilateralism by many leaders and governments around the world. And the most worrisome are some of them in Western Europe. 

If the retreat from multilateralism would lead to circumstances where governments would be willing to throw the ICC under the bus to keep on good terms with the United States, that would be a major defeat for the maintenance and advancement of the rule of law in the world.

Should the Dutch and the EU governments take the The Hague Invasion Act serious? In 2002 the American embassy in The Hague declared that the American government couldn’t imagine any circumstances in which the US would decide to take military action against The Netherlands or any other ally.

“The official position of the US Congress remains a dangerous symbolic opposition to international criminal justice. The whole idea of a military invasion of The Netherlands to extricate a US national should be in the fantasy section. But we now have a president that operates in that section all the time. Under the current administration everything is possible.

If allegations were brought against high-level people in the Bush administration or against our soldiers I think that would lead to a very strong reaction. And I think that’s exactly what Bolton would like. He’d like to convince the international community: “You’ve made a mistake establishing ICC and now you need to close it down. If you don’t, we will sanction you until you agree to close it down.”

Under the Bush administration Bolton had people in The White House checking on him, like secretaries of state Colin Powell and Condoleeza Rice. Now he has Mr. Trump. I think therefore his threats are much more dangerous this time.