US Threat to ICC Discussed During Member States’ Debate on Rome Statute Anniversary

The threat made by a senior official of the United States to the International Criminal Court (ICC) was one of the issues member states of the ICC spoke about as they reflected on the 20thanniversary of the founding law of the ICC, the Rome Statute.

The annual meeting of ICC members, formally called the Assembly of State Parties (ASP), began on December 5, 2018. Diplomats, court officials, academics, and civil society representatives made brief presentations on what they thought the ICC had achieved and the challenges it has faced in the past 20 years since the Rome Statute formally became a treaty.

Delegates also spoke about having senior positions in all the court’s organs reflect better the diversity of the court’s membership in gender and geography. These were some of the subjects that came up in a session during the ICC Assembly of States Parties last week set aside to commemorate the adoption on July 17, 1998 of the treaty forming the ICC

None of the diplomats or ICC officials who spoke out against the recent threats to the court named any person or country who had made a threat to the court. Friday’s session on the 20thanniversary of the Rome Statute had a panel format, with six people giving their perspectives on the anniversary followed by contributions from country and civil society representatives. The panelists were given an opportunity to respond to those contributions.

ICC Prosecutor Fatou Bensouda, who spoke before the panelists made their presentations, said she observed with concern that the world is now faced with a rejection of international law and the rule of international law.

“Unilateralism rooted in a zero-sum calculus would not result in any long-term gains,” Bensouda told ICC members.

“More cooperation and principled support for the cause of international justice are therefore needed, not less,” said Bensouda.

Costa Rica’s ambassador to The Netherlands, Sergio Ugalde, who was the first panelist to speak, said there were “those who have taken upon themselves to erode it (the court’s credibility) and where possible to end it.”

Ugalde said this required all concerned, “to fend off the hostile environment,” and remain undeterred until “rationale thinking begins to take command of international relations.”

The representative of the State of Palestine, who spoke after the panelists did, said treating the threats that have been made to the ICC as “an isolated issue is definitely being short-sighted.” She warned that backing down or “any compromise, real or perceived, will undermine the integrity (of the court).” She also warned that allowing the powerful to have their way, “would mean we are surrendering the weak to the brutally mighty.”

When the Palestinian representative was called to speak, she was only identified by the country she represented and not by name. This happened to all who made contributions during the session except the panelists and Bensouda, who were introduced by name and designation.

John Dugard, emeritus professor of law of the Universities of Witswatersrand and Leiden, named the people and country who had threatened the ICC in the recent past. Dugard did this when he made his presentation as one of the six panelists.

“There can be no doubt that the attack of John Bolton (the US National Security Adviser) on the ICC is part of a concerted strategy on the part of the United States to destroy the ICC. It was not a random speech by a flawed politician. It is (a) threat twice made by Mr. Bolton and endorsed by President (Donald) Trump in his speech to the General Assembly of the United Nations in September. On 4 December US Secretary of State Mike Pompeo labelled the ICC as a ‘rogue court’ in a speech in Brussels,” said Dugard.

“In his speech to the Federalist Society, Bolton directly attacks proceedings before the ICC involving two member states – Afghanistan and Palestine – and makes it clear the US will intervene to sabotage any investigations into crimes committed by US or Israeli forces. Such a threat is not only a threat to the victims of international crimes in these states. It is (a) threat to the ICC as a whole,” said Dugard.

The United States is not a member of the ICC. The US has, however, signed the Rome Statute but not ratified it.

Dugard said that the threats called for the ASP to make a strong collective response. Dugard said such a response should include the member states of the ICC saying they will protect officers of the court and they will not hold their annual meeting in New York next year. The venue of the ASP usually alternates between The Hague and New York. This year the ASP took place in The Hague.

An ASP response should also make clear that “it will stand by the victims of violations of international humanitarian law in Afghanistan and Palestine and the OTP (Office of the Prosecutor) will not delay any investigation to accommodate the US,” said Dugard.

“It is for the ASP to respond, not the Court itself. And it must do this bravely and boldly. After all, its very survival is at stake,” said Dugard.

Mexico’s representative also spoke on the issue of the threat to the ICC and, like the other diplomats, he did not name any country or person.

“We regret that several states have denounced the Rome Statute. We hope that the court will continue to work to carry out its mission,” said Mexico’s representative.

When he was given an opportunity to respond to the contributions of delegates and when he was asked to make a closing comment, Dugard said he was concerned that delegates did not want to address the threat the US had made to the ICC.

“I see the ICC threatened by the US. I see the ICC being dictated to by the US. But members of the ASP prefer not to see this. I must say this is the dialogue of the deaf,” said Dugard.

Another panelist, Bill Pace, the convener of the Coalition on the International Criminal Court (CICC), said he was aware there have been discussions on how to respond to the US threat.

“There’s a diversity of opinions of how to react to that (the US threat),” said Pace. “We know many of those governments are discussing how to address the threats.”

Another issue that caused some debate was gender representation and geographical representation—or whether the staff in all organs of the ICC are representative of gender and the member states of the court. Brazil’s representative raised the issue during their presentation. Another representative pointed out that there were many women judges serving on the court and when one analyzed the ICC staff composition, women and men were almost at par.

Ugalde said it is true that overall figures showed that both genders were well-represented in the staffing of the ICC, “but if you see the actually numbers of women in top positions we are not there yet. It is the same with geographical representation.”

Other members of the panel on the 20thanniversary of the Rome Statute were Brandusa-Ioana Predescu, Romania’s ambassador to The Netherlands; Namira Negm, the African Union’s legal counsel; and Maria Teresa Infante Caffi, Chile’s ambassador to The Netherlands.

Throughout most this year there have been events to commemorate the 20thanniversary of the Rome Statute. These events have been held at the seat of the ICC in The Hague but also in different countries. At this year’s ASP there were also side-events with the 20thanniversary of the Rome Statute as a theme. There was also a retrospective exhibition of cartoons on the ICC from five African cartoonists as well as a photo exhibition during this year’s ASP.

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