The ICC is eroding the global legal order by pardoning US war crimes in Afghanistan
The International Criminal Court's (ICC) new Chief Prosecutor Karim Khan is failing his mandate.
On September 27, the British lawyer stated that he intends to investigate war crimes in Afghanistan, yet he will only prioritize violations committed by the Taliban and the Islamic State group, not cases involving US forces.
The announcement disappointed rights groups and experts, who say that US troops committed some of the most egregious war crimes and crimes against humanity in what Americans now call its 'longest war.'
"Khan is sending a message that wealthy and powerful states can continue violating human rights with impunity"
Most US crimes happened in rural villages, where US drones routinely and carelessly killed innocent men that were mistaken for Taliban or al-Qaeda suspects. Night raids were another harrowing staple of the US's counterinsurgency, many of which ended with summary executions. Despite the abundance of evidence of US war crimes, supporters of Khan's position - such as former spokeswoman for the US State Department Elizabeth Trudeau - argued that the ICC probe was not appropriate since the US has its own robust national justice system. Other US officials have also argued that the ICC has no jurisdiction over their personnel since Washington has not ratified the Rome Statute, which founded the ICC back in 1998.
Yet, Article 12 of the Rome Statute clearly states that the ICC can prosecute crimes committed by nationals of member states, and any crimes committed on the territory of a member state, including by foreigners.
Former Chief Prosecutor Fatou Bensouda, from The Gambia, upheld this provision when she insisted to investigate US crimes in Afghanistan. Bensouda’s position prompted the Trump administration to impose sanctions on her in September 2020. While those sanctions were lifted by President-elect Joe Biden, Khan’s move to exonerate US personnel in Afghanistan appears to be an attempt to repair the ICC’s relationship with Washington.
By doing so, Khan is sending a message that wealthy and powerful states can continue violating human rights with impunity.
The ICC is struggling for relevance. To date, the court has only indicted war criminals from Africa - 44 in total - prompting a number of African leaders to denounce the court for its imperial character. Bensouda was aware of the court's tarnished reputation, so she set out to expand the ICC's scope to include US crimes in Afghanistan and the occupied Palestinian territories.
But like the backlash generated from trying to hold US forces accountable, a number of Western nations - such as Australia, Canada, and Germany - opposed an investigation into Israeli crimes in the Palestinian territories, arguing that the ICC had no jurisdiction since Palestine is not a state. However, ICC judges ruled in February 2019 that the court does indeed have jurisdiction over the occupied territories, which Israel captured in 1967.
Several months later, Bensouda said that there was a reasonable basis to investigate war crimes committed by Israeli soldiers in both occupied territories, as well as possible crimes committed by the Islamist militant group Hamas in Gaza. Both the Palestinian Authority and Hamas welcomed the court's actions, Israel did not.
Former Israeli Prime Minister, Benjamin Netanyahu appeared so afraid that the climate of impunity for Israeli's soldiers could come to an end that he lashed out at the ICC. "The ICC reached a decision which is the essence of anti-Semitism," Netanyahu said in a video posted on Twitter.
While Netanyahu’s disingenuous use of anti-Semitism to attack the ICC was predictable, it exposed the anxiety that an international probe was generating among Israel's political elite. However, Israel's new leaders can now breathe a sigh of relief following Khan’s announcement on Afghanistan, which they will surely interpret as a submission to political pressure.
Israel may now step up pressure on the ICC to persuade Khan to cancel the probe in the occupied territories or to simply prioritize rights violations by Hamas. If that does occur, then the leadership in the West Bank and Gaza - and indeed the entire global south - will be further vindicated that the international liberal order is designed to shield powerful nations from accountability.
That reputation will significantly harm the credibility of the ICC and thus its ability to collaborate with post-colonial states in the future. After all, who could blame weaker and poorer nations for refusing to cooperate with a court that they perceive as exclusively tasked with punishing war-criminals from the global south? Some countries have already attempted to pull out of the ICC by citing this reason, such as South Africa in 2016.
"The more countries that withdraw from the Rome Statute, the more unsafe the world will be"
The more countries that withdraw from the Rome Statute, the more unsafe the world will be. Because unless the ICC maintains - and hopefully expands - jurisdiction across the globe, state and non-state actors won't be deterred from carrying out grave human rights violations such as genocide and ethnic cleansing.
To restore the court's legitimacy, the US and Israel could simply ratify the Rome Statute, yet that scenario is extremely unlikely. In the very least, Khan can follow through on Bensouda’s plans to hold all perpetrators accountable – irrespective of nationality – where legally possible. Only then, will the global south begin to view the ICC as a truly impartial court, rather than a weapon directed at post-colonial states.
But rather than inspire confidence in the ICC, Khan's probe in Afghanistan will apply the double standards of the liberal international order. As a lawyer, he must recognize that the pursuit for justice fails when the law is not applied equally.
Mat Nashed is a Lebanon-based journalist covering displacement and exile.
Follow him on Twitter: @matnashed
Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.