At the height of the Covid-19 pandemic that shook the planet, Washington insisted on making the Chinese state pay for its shortcomings. For several weeks, politicians – Donald Trump at the head – accused China of having delayed communicating on the gravity of the situation and of having minimized the number of deaths linked to the coronavirus. Lawyers, activists and elected Republican have multiplied requests for referrals to the International Criminal Court (ICC), citing the need to punish the Chinese state. This is both impossible – since the United States does not recognize the ICC, having not ratified the Rome Statute – and very surprising when we know the hostility of the country towards international justice.
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But since June 11, 2020, the ICC has again been the target of the United States. Donald Trump has indeed signed a presidential decree announcing economic sanctions against magistrates and ICC officials. He accused the Court of having launched an investigation into possible war crimes committed by the United States during the Afghan war. An investigation that would be “a threat to national security,” according to President Trump. “This is a good illustration of the tensions weighing on international justice, which is used here as a realpolitik tool, it perfectly underlines the position of the United States vis-à-vis international justice”, believes Raphaëlle Nollez-Goldbach, researcher in international law at the CNRS and the ENS.
Practices used during questioning in question
The ICC investigation targets the Taliban, the Afghan army, but also the techniques used during interrogations carried out by American soldiers or CIA agents in secret interrogation centers created after 2003. Prosecutor of the The ICC and the judges notably relied on reports from the United States Senate, published after commissions of inquiry. These reports refer to interrogation practices such as waterboarding (water torture), but also isolation, 24 hour light exposure or nudity.
If the prosecutor requested the opening of an investigation in 2017, the Court had finally declared itself incompetent in 2019. “The prosecutor had then appealed this decision and the United States, in reaction, had already taken sanctions against the Court. In April 2019, a presidential decree was signed to revoke the visa for the ICC prosecutor. An obviously symbolic act ”, notes Raphaëlle Nollez-Goldbach. Suspended, the investigation had not resulted in the issuance of any arrest warrant. But on March 5, a rebound, the Court’s appeal chamber again authorized the opening of an investigation in Afghanistan (a country which has itself ratified the Rome Statute), again provoking the ire of Washington.
“Despite repeated calls from the United States and our allies for reform, the International Penal Court has done nothing to reform and continues to conduct politically motivated investigations against us or our allies, including Israel, “said the spokeswoman for the president in a statement. A way to raise the pressure a notch while the ICC is also investigating in Palestine. Faced with this new investigation, Donald Trump announced the freezing of all property and financial assets of the members of the ICC charged with the investigation in Afghanistan. With these sanctions, the United States hopes dissuade the jurisdiction from prosecuting US military personnel for their involvement in the Afghan conflict.
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Again, the pressure remains fairly symbolic, since the ICC cannot take sanctions against a state. It can only decide on an individual’s guilt. As part of the investigation of the crimes possibly committed during the war in Afghanistan, the ICC could therefore only issue arrest warrants against individuals. “To judge the responsibility of an American during a trial, it would first be necessary to make an arrest then a transfer to The Hague [où se situe la CPI, NDLR]. This is a rather improbable hypothesis, insofar as the ICC has no police and is entirely dependent on the cooperation of states, “underlines Raphaëlle Nollez-Goldbach.
“A serious attack”
For the researcher, this dispute perfectly illustrates the debate that exists around international justice, subject to very “big limits”. “One may wonder what is the point of opening this kind of investigation and issuing arrest warrants which will not succeed. But conversely, total inaction would return a disastrous image. We must not give the impression that there is only justice for the powerful, ”says Raphaëlle Nollez-Goldbach.
France reiterates its full support for the ICC, “the only permanent and universal international criminal jurisdiction “
Usually fairly discreet on these questions, France and then Europe expressed their “dismay” at the announcement of the American decision. “This decision represents a serious attack on the Court and, beyond that, a calling into question of multilateralism and the independence of the judiciary,” said French Minister of Foreign Affairs Jean-Yves Le Drian.
“France reiterates its full support for the CPI […], the only permanent international criminal jurisdiction with a universal vocation. As such, it plays a key role in the fight against impunity for the perpetrators of the most serious crimes. It thus provides a response to the need for justice for the victims of these crimes and contributes to international peace and stability, “said the head of French diplomacy. The minister also called on Washington to reconsider its decision while specifying that Paris “would continue to act so that the Court is able to fulfill its mission in an independent and impartial manner, in accordance with the Rome Statute”.