ICC’s survival gambit

ICC’s survival gambit | Daily Tribune

The intrusion of the moribund International Criminal Court (ICC) into a country’s affairs is being fought not only in the Philippines but also in the United States, where it has become a key issue.

Such allegations of meddling form the crux of the arguments raised against the actions taken against former President Rodrigo Duterte Jr.

The United Nations General Assembly (UNGA) recently met to condemn the US sanctions imposed earlier this year on ICC judges and prosecutors.

UNGA President Annalena Baerbock of Germany denounced the sanctions as “assaults on the very principles of international law itself.”

But the US clapped back, “unequivocally” opposing ICC action against the United States or any US ally that hasn’t consented to ICC jurisdiction and warning that America would not stand by in the face of this infringement on “the principle of state sovereignty” and threat to “our critical national security and foreign policy work.”

The ICC has become politicized, pursuing leftist vendettas against the United States and Israel (neither of which is a party to the ICC), seemingly weaponizing its authority to deflect from an internal sex scandal, and doing so at staggering cost with little to show for it.

Brett D. Schaefer, a senior fellow at the conservative American Enterprise Institute, where he focuses on multilateral treaties, peacekeeping, and the United Nations and international organizations, explained that multiple US administrations refused to ratify the Rome Statute, which established the ICC.

Instead, they have maintained that the ICC does not have jurisdiction unless a country has ratified the Rome Statute, voluntarily submitted to the ICC’s jurisdiction, or been referred to the court by the Security Council.

The main worry of the US government was that the ICC might pursue politicized investigations against US service members or elected officials, which became real when the ICC launched an investigation into alleged US war crimes in Afghanistan during the first Trump administration.

The court more recently opened another investigation into Israel’s alleged war crimes in the Palestinian territories in 2021.

In both instances, Schaefer said the ICC asserted jurisdiction over non-parties. In the case of the Philippines, the ICC insisted on its authority despite the country’s withdrawal from the Rome Statute, the agreement that created the international tribunal.

In the three cases, the court ignored its own complementarity standard under which the ICC is to be a court of last resort and must yield to investigations by national authorities.

The United States, Israel, and the Philippines investigate credible allegations and have meted out punishment when warranted.

In all three cases, the court was deeply influenced by political pressure. The ICC prosecutor declined to launch a formal investigation into alleged US crimes for over a decade, to the frustration of many of its supporters, only to change course and seek a formal investigation in 2017.

It is not coincidental that the court was being criticized at the time for ineffectiveness and excessive focus on Africa.

These criticisms remain valid. Even with recent investigations launched elsewhere, most ICC investigations focus on Africa. All told, over 23 years, the court has issued 61 arrest warrants, heard only 33 cases, and rendered 13 convictions.

Considering that the court has an annual budget of $227 million (cumulatively over $3 billion since it was established in 2002) and more than 900 staff, this is hardly an impressive return on investment.

Facing a lack of cooperation and a desire to de-escalate tensions with the United States under a newly elected Biden administration, the next ICC prosecutor, Karim Khan, decided in 2021 to “deprioritize” the investigation into alleged US crimes in Afghanistan.

The circumstances surrounding the Israel investigation also point to a political calculation, starting with the ICC decision to recognize Palestine as a state and accept its accession to the Rome Statute in 2015, opening the door to jurisdiction claims by the ICC.

In 2024, the ICC prosecutor, Karim Khan, abruptly canceled a follow-up trip to Israel and sought arrest warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.

It was subsequently reported that Khan was facing allegations of sexual misconduct and abuse of authority by a subordinate, raising questions about his timing and motivation in racing ahead against Israel, according to Schaefer.

Scaling up the cases against Duterte and his allies was meant to compensate for the tribunal’s overall failure in its other high-profile cases, which the countries of the tribunal’s targeted personalities chose to ignore.