The Permanent Premises of the International Criminal Court in The Hague, Netherlands. 

© 2016 UN Photo/Rick Bajornas

(The Hague) – International Criminal Court (ICC) member countries should reaffirm the court’s mandate in the face of United States threats to weaken its essential role in international justice, Human Rights Watch said today. The 17th session of the court’s annual meeting, the Assembly of States Parties, will take place in The Hague from December 5 to 12, 2018.

The administration of US President Donald Trump has sought to undermine the court’s legitimacy and threatened to thwart investigations involving the US or its allies. On September 10, the US national security adviser, John Bolton, declared that the US would not cooperate with the ICC. He threatened a number of retaliatory steps if the court investigated US citizens or citizens of allied countries, including against court officials and governments cooperating with the ICC. Trump also made critical remarks at the United Nations General Assembly.

“US threats against the ICC are an affront to every victim seeking justice before this court,” said Elizabeth Evenson, associate international justice director at Human Rights Watch. “ICC member countries should demonstrate at their annual meeting their resolve to oppose any effort to undermine the court’s investigations and prosecutions.”

The ICC prosecutor’s request to open an investigation in Afghanistan, which could include crimes committed by Taliban forces and the Afghan government, as well as US military and Central Intelligence Agency personnel, is pending before the court. An ICC investigation in Afghanistan would advance accountability and provide victims with a path to justice, while putting those responsible for serious crimes on notice that they could face prosecution, Human Rights Watch said.

ICC member countries responded to the US threats with strong statements of support for the court. Similar efforts in the past to undermine the court’s work have also been met by firm resistance from members, including a hostile US campaign by the George W. Bush administration.

Given the broader pressure on the international rule of law, it is all the more important for ICC member countries to defend the court’s mandate with clear statements and actions, Human Rights Watch said. ICC members should seize opportunities during the meeting’s general debate in the language of resolutions adopted, in discussions on state cooperation, and at other moments to show their resolve to ensure that the court can do its job.

Members will mark the 20th anniversary of the ICC’s founding treaty, the Rome Statute, during a dedicated debate at the session, capping a year of anniversary commemorations. They will also discuss victim rights. Governments and court officials should use discussions to address the court’s challenges, including improving court investigations, deepening the court’s impact in affected communities, and securing arrests based on its warrants since the court depends on member countries to make the arrests. On November 17, Alfred Yékatom, known as “Rombhot,” was surrendered to the court in a case arising out of its investigation in the Central African Republic, the second arrest in 2018 for the court. But 17 arrest warrants remain outstanding, at the expense of victims and their families.

“The ICC has struggled to deliver on expectations,” Evenson said. “It’s precisely because the court’s role is so crucial in bringing justice that court officials need to step up their performance and member governments need to increase their support.”

Human Rights Watch issued a briefing note in advance of the session, with recommendations to ICC states parties, including for the election of the court’s next prosecutor. The term of the current prosecutor, Fatou Bensouda, expires in June 2021. Early preparations and a strictly merit-based approach to the election is needed, Human Rights Watch said.

Negotiations about the court’s annual budget, with funds provided by its member countries, will be part of the agenda. Some member countries have demanded “zero growth” in the court’s budget, but other countries increasingly have insisted that the court should have the resources it needs to manage its growing workload. During 2018, the ICC prosecutor opened three new preliminary examinations – into the situations in the Philippines, Bangladesh/Myanmar, and Venezuela – and received two referrals from member countries to examine the situations in Palestine and Venezuela.

The ICC is the first permanent global court mandated to bring to justice people responsible for war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so. It is a court of last resort and has 123 member countries. In addition to the request to open an investigation in Afghanistan, the ICC prosecutor has opened investigations in Central African Republic, Côte d’Ivoire, the Darfur region of Sudan, Democratic Republic of Congo, Georgia, Kenya, Libya, Mali, and northern Uganda. The prosecutor is also examining allegations of crimes committed in a number of places to determine whether to open investigations. In addition to Venezuela, Bangladesh/Myanmar, and the Philippines, these include Colombia, Guinea, Nigeria, Palestine, Ukraine, and alleged abuses by United Kingdom armed forces in Iraq.

“The court is a crucial yet vulnerable component of the rule-based global order, and has a vital role to play in backstopping victims’ access to justice,” Evenson said. “Members should take every opportunity to make clear that they will provide the support it needs.”