‘The ICC is dead to us’: America declares war on international justice

In September 2001, following the 9/11 attacks, President George W Bush vowed in his State of the Union address: “Whether we bring our enemies to justice, or bring justice to our enemies, justice will be done.”

What was sold to the nation as justice, however, was seen as vengeance elsewhere. The war he launched that day is still raging, 17 years on.

Since the outset of the war on terror, it has not been uncommon to hear threats from al-Qaeda and its affiliates against Western nations engaged in the occupation of Muslim countries. These threats began in Afghanistan. 

But this week, which marks the 17th anniversary of the 9/11 attacks, it is the US issuing threats against the very Western institutions of justice that it claims to fight for and defend. 

Torture of Afghan detainees

Late last year, the International Criminal Court’s chief prosecutor, Fatou Bensouda, announced plans by the ICC to start investigations into historic allegations of detainee abuse. This followed a 2016 ICC report that affirmed a “reasonable basis” to believe that the US had carried out torture in Afghanistan. 

However, in a Washington speech this week, hawkish US National Security Adviser John Bolton called the ICC “illegitimate” and promised the US would use “any means necessary to protect our citizens and those of our allies from unjust prosecution”.

Instead of using established policing methods, the US and its allies have pursued the notion of endless and total war

His shocking and belligerent tirade continued: “We will not co-operate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.”

Bolton went further still, issuing threats of sanctions and prosecutions against not only ICC officials, but anyone who assists them. “We will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans,” he said. Perhaps ICC officials themselves may now be subjected to extraordinary rendition? 

Whatever the case, the US reaction has been almost hysterical. But, considering the US Senate report on CIA torture concluded that US personnel tortured many of the 119 terrorism suspects in their custody, such allegations are not new. Indeed, the US has admitted them - to a degree.

When national systems fail

The purpose of the ICC was agreed by treaty between 120 countries in the 1998 Rome Statute to provide justice for genocide, crimes against humanity and war crimes when national systems fail. The US has failed to prosecute anyone for the crimes it committed in Afghanistan.

While there are problems with the ICC - including its ability to properly punish - and questions over jurisdiction, 120 countries signed the treaty. Those who voted against it included the US, China, Iraq, Israel, Libya, Qatar and Yemen. When it comes to justice and accountability for war crimes, the US is in good company.  

In practice, the ICC seems to have been more concerned with African leaders and nations, while largely ignoring powerful human rights violators such as Russia, Israel, India, Britain and the US. That is why its intention to investigate and prosecute US officials is so important.

I was among the people asked by the ICC to give evidence about the abuses I encountered at the hands of the US military during my imprisonment in Afghanistan. My evidence included witnessing the fatal beating by US soldiers of two Afghan prisoners.

My colleagues at the London-based advocacy group CAGE have also facilitated testimony from prisoners around the world who survived years of torture at the hands of US forces.

Whirlwind of vengeance

Seventeen years ago, the US was attacked on its own soil for the first time since World War II. It has been reaping its vengeance, and a whirlwind, ever since. 

That vengeance has led to the systematic use of rendition and torture, grown within a culture of impunity and spanning five US presidential terms, both Democrat and Republican. Instead of using established policing methods, the US and its allies have pursued the notion of endless and total war. 

The great irony is that the US set up Guantanamo in order to imprison the perpetrators of the 9/11 attacks. But after having imprisoned, tortured and interrogated 779 prisoners in Guantanamo and thousands more in secret prisons in Afghanistan, not a single 9/11 plotter has been successfully prosecuted.

This is largely because the handful of prisoners in Guantanamo who have been charged under the highly controversial military commissions system cannot have their cases heard on the US mainland because of the torture and abuse to which they were subjected. Put simply, they can’t prosecute the people behind 9/11 because torture evidence is inadmissible in US courts.

ICC investigators will look at “war crimes by members of the United States armed forces” and “secret detention facilities in Afghanistan” where some of that torture took place. Investigations will also include purported abuses committed by the Afghan National Army (ANA) and the Taliban.

Interestingly, no threats against the ICC have been issued by the ANA, the Taliban or even al-Qaeda.

Failing the test

To reinforce the US position, White House spokeswoman Sarah Huckabee Sanders also said that President Donald Trump would seek to protect US citizens against prosecution from the ICC by “any means necessary”.

Perhaps the reference was lost on the rightwing administration, but Bolton and Huckabee Sanders were quoting the US black Muslim civil rights leader Malcolm X, who famously said about African Americans: “We declare our right on this earth to be a man, to be a human being, to be respected as a human being, to be given the rights of a human being in this society, on this earth, in this day, which we intend to bring into existence by any means necessary.”

Malcolm X was talking about the imperative of obtaining justice, not threatening those who seek to implement it

But Malcolm X was talking about the imperative of obtaining justice, not threatening those who seek to implement it.

The ICC has responded to US threats by saying it will continue with its work, regardless. Where and how this will end is anyone’s guess. But this process will put many of those who claim to support the idea of justice to the test. In that regard, some have already failed.

- Moazzam Begg is a former Guantanamo Bay detainee, author of Enemy Combatant and outreach director for UK-based campaigning organisation CAGE. Follow him on twitter: @Moazzam_Begg

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.

Photo: Protesters gather in front of the US Supreme Court in Washington on 11 January 2017, asking the president to ‘expedite releases from Guantanamo’ (AFP)