By: Samantha Dorn, Staff Writer
Recently, Christoph Flügge, a senior judge at one of the United Nations’ International Criminal Court (ICC), made international headlines when he resigned from his position citing political interference from Turkey and the United States.[1] Flügge, a German judge who had been a judge on the International Criminal Tribunal for the Former Yugoslavia since 2008, claimed that Turkey made “baseless allegations” about a Turkish judge who had been arrested and convicted for having ties with a U.S. cleric who was blamed in a failed coup attempt in Turkey in 2016.[2]
Flügge also criticized statements made by United States National Security Advisor John Bolton regarding the ICC investigation into potential war crimes in Afghanistan.[3] On November 20, 2017, the Prosecutor of the ICC asked for authorization to begin an investigation into war crimes and crimes against humanity in Afghanistan since May 2003.[4] According to the Coalition for the International Criminal Court, a non-profit organization that advocates for the ICC, the Court’s admissibility assessment is investigating crimes committed by Afghan and foreign government forces, as well as anti-government forces like the Taliban.[5] The Coalition also says that the ICC is looking at criminal proceedings in the United States and other NATO states that are suspected of sanctioning unlawful conduct.[6] Between December 2017 and February 2018, the Court received 699 victim representations of both individuals and collective entities.[7] The investigation is currently ongoing, but the Trump administration has warned that ICC could face tough action if it tries to prosecute Americans under this investigation.[8]
With regard to the ICC investigation, John Boulton stated, “[T]he ICC should not investigate unfounded allegations of detainee abuse by U.S. patriots protecting the United States in Afghanistan.”[9] Boulton suggested that the U.S. “could respond by banning ICC judges from traveling here, by sanctioning their funds in the U.S. financial system, and by prosecuting them in the U.S. criminal system.”[1o] In response to Boulton’s statements, Flügge said, “The American threats against international judges clearly show the new political climate. It is shocking. I have never heard such a threat.”[11]
However, disputes between the U.S. and the ICC are nothing new. The United States’ relationship with the ICC has been in a state of flux since the Court’s inception. The treaty that created the ICC, known as the “Rome Statute,” was adopted on July 17, 1998 by 120 to 7 vote, with 21 countries abstaining.[12] The United States was one of the seven countries that voted against the Rome Statute.[13] Nevertheless, President Bill Clinton signed the Rome Statute in 2000, but he did not submit it to the Senate for ratification. [14] Clinton indicated that he would not submit the statute to the Senate until the U.S. government could ascertain the functioning of the Court.[15]
In 2002, after the requisite number of countries ratified the Rome Statute, President George W. Bush sent a note informing the U.N. Secretary-General that “the U.S. no longer intend[s] to ratify the Rome Statute, and that it did not recognize any obligation toward the Rome Statute.”[16] When the Obama Administration took office, it stated its intent to cooperate with the ICC.[17] In 2009, Stephen Rapp, the Ambassador-at-Large for War Crimes Issues, led a U.S. delegation to the ICC’s annual Assembly of States Parties, where the U.S participated as an observer for the first time.[18] Despite the Obama Administration’s cooperation with the ICC, the United States is still listed as “signatory that has not ratified,” a category it shares with Russia, Iran, Syria, and Sudan, among others.[19] Other countries, including China, India, Turkey, and Saudi Arabia, are classified as “non-state party, non-signatory.”[20]
The American Service Members’ Protection Act (ASPA), enacted in 2002 under the Bush Administration, is one of the main reasons that the U.S. has not ratified the Rome Statute[21] In its findings, the ASPA states that Americans prosecuted by the ICC would be denied procedural protections that all Americans are entitled to under the Bill of Rights—like the right to trial by jury—and creates the possibility that the President and other senior officials could be prosecuted by the ICC.[22] Sec. 2004(b) of the ASPA specifically prohibits the U.S. government from cooperating with the ICC in response to a request from the Court.[23] The ASPA also forbids extraditing or transferring U.S. citizens or permanent residents to the ICC, providing support to the court, or investigating on behalf of the ICC.[24] In addition, the ASPA authorizes the President to bring about the release of a person being detained or imprisoned by or on behalf of the ICC.[25]
Notwithstanding the ASPA, the Trump Administration made it clear that the United States’ will not cooperate the ICC. When White House Press Secretary Sarah Sanders was asked about Boulton’s comments at a press conference, she replied:
The President is committed to defending our national sovereignty and all of our security interests, which would include using any means necessary to protect our citizens and those of our allies from unjust prosecution by the ICC. Their announcement that they would consider opening an investigation into—among other parties—U.S. soldiers in Afghanistan is a threat to American sovereignty. And if they proceed with that, then the United States would consider those options that Ambassador Bolton laid out today.[26]
The ICC responded, in part, “The ICC, as a court of law, will continue to do its work undeterred, in accordance with those principles and the overarching idea of the rule of law.”[27]
Sources:
[1] http://www.abajournal.com/news/article/judge-on-international-court-quits-over-alleged-interference-from-turkey-and-the-white-house
[2] http://www.abajournal.com/news/article/judge-on-international-court-quits-over-alleged-interference-from-turkey-and-the-white-house; https://verfassungsblog.de/prosecuting-a-judge-that-enjoys-diplomatic-immunity-the-case-of-judge-aydin-sefa-akay/
[3] Id.
[4] https://www.icc-cpi.int/afghanistan
[5] http://www.coalitionfortheicc.org/country/afghanistan
[6] Id.
[7] https://www.icc-cpi.int/afghanistan; https://www.icc-cpi.int/RelatedRecords/CR2018_01452.PDF, para. 24-31.
[8] https://www.icc-cpi.int/afghanistan; https://www.reuters.com/article/us-usa-trump-icc/trump-administration-takes-aim-at-international-criminal-court-plo-idUSKCN1LQ076
[9] http://www.abajournal.com/news/article/judge-on-international-court-quits-over-alleged-interference-from-turkey-and-the-white-house
[10] http://www.abajournal.com/news/article/judge-on-international-court-quits-over-alleged-interference-from-turkey-and-the-white-house
[11] https://www.newsweek.com/un-judge-quits-trump-threats-1309973
[12] https://iapss.org/2018/10/23/history-of-the-us-international-criminal-court-relations/
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx#S
[20] Id.
[21] https://iapss.org/2018/10/23/history-of-the-us-international-criminal-court-relations/
[22] 2002 Supplemental Appropriations Act for Further Recovery from and Response to Terrorist Attacks on the U.S., Pub. L. No. 107-206, § 2002(7)-(9), 116 Stat. 820, 899-900 (2002).
[23] Id. § 2004(b), 116 Stat. at 902-903.
[24] Id. § 2004(d)-(f) (h), 116 Stat. at 903.
[25] Id. § 2008(a), 116 Stat. at 905.
[26] https://www.jurist.org/news/2018/09/icc-court-will-continue-afghanistan-war-crimes-investigation-despite-us-threats/
[27] Id.
