America’s role as self-proclaimed primary supporter of human rights makes it essentially unavoidable for the US to join the ICC.

On July 11, the International Criminal Court (ICC) determined that “the Republics of Uganda and Djibouti had failed to comply with the request for arrest and surrender of Omar al-Bashir to the ICC,” leading it to refer the case to the United Nations Security Council (UNSC) to take appropriate measures regarding this matter.

The reason for the outrage is all too understandable: Bashir, president of Sudan, is wanted for organizing war atrocities, including genocide and crimes against humanity in Sudan’s breakaway region of Darfur. As signatory members of the ICC, Uganda and Djibouti were legally obliged to carry out arrest warrants. Instead, the two countries gave Bashir a red carpet reception.

Friends in High Places

The ICC’s referral is a special one. It marks the first time the court is publicly scolding its signatories in such intrepid terms since its inception in 2002. Just last year, when South Africa failed to arrest Bashir and caused international outrage, the ICC responded with a shrug.

However, the current ruling seems to indicate that the ICC is no longer willing to stand idly by and see its authority quashed. For the first time, this referral raises hopes that the ICC will be able to raise its profile as an international institution of the law. In the words of international law Professor Wolf Stainer, “The Court is cracking a whip not just on its members to uphold a warrant, but also on countries like Sudan where it seems determined to see Mr Al Bashir in the dock … This takes the ICC well past what was envisaged when it was set up, and should send a tremor among the world’s dictators. In 2016, no one is beyond the grasp of justice.”

Ironically, Djibouti’s quasi-dictatorial president, Ismail Omar Guelleh, is himself targeted by the ICC for his role in quashing an opposition rally in December 2015 that led to the killing of dozens of activists. The country has a dismal human rights record, with many political rights severely curtailed and torture being in rampant use.

While President Bill Clinton signed the statute in 2000, in 2002 the Bush administration “unsigned” it out of fear that US nationals, particularly military personnel, could be put on trial before the ICC. At a time when the war in Afghanistan was raging and the Pentagon was drawing up plans to oust Saddam Hussein from Iraq, the administration’s fears were fully warranted.

Furthermore, Guelleh is accused of rigging the presidential election in April this year to his advantage, winning 87% of the vote and securing a fourth term. However, Djibouti is host to the only US military base in Africa, as well as China’s first bricks-and-mortars military installation. With such high-placed friends, the ICC’s ruling sadly could amount to nothing more than a slap on the wrist. As for Uganda, President Yoweri Museveni, who is currently on his fifth term, has repeatedly lashed out against the court, calling it earlier this year “a bunch of useless people.”

Bashir is unlikely to get arrested any time soon as he keeps jetting freely around Africa and Asia. At the African Union (AU) Summit in Kigali, Rwandan Foreign Affairs Minister Louise Mushikiwabo claimed that “We have no right to arrest anybody,” on the grounds that Bashir is protected by presidential immunity and Rwanda is not a signatory to the ICC.

Exceptionalism

However, the UNSC can refer any case to the ICC, which is why the warrant for Bashir could still be issued. Moreover, African states also harbor a special distrust toward the court, accusing it of harboring a regional and racial bias, since most of the ICC’s cases have thus far tackled only Africa. The fact that the United States refuses calls to ratify the 1998 Rome Statute that established the ICC only adds to the perception of the court as a neocolonial institution meant to whip the African people into submission.

Nevertheless, there are means to address these issues in a meaningful way. In order to dispel fears of an “African bias,” the ICC chief prosecutor, Gambian lawyer Fatou Bensouda, has sought to broaden the court’s scope by exploring alleged crimes in Palestine, opening an initial inquiry in Ukraine and requesting the ICC to commence a formal investigation into the 2008 Russia-Georgia war, while investigations relating to Afghanistan, Colombia and Iraq are ongoing.

Truly reforming the ICC, however, will only be achieved once the US joins its ranks. From the outset, Washington’s refusal to ratify the Rome Statute sabotaged the ICC’s legitimacy and reach, condemning the court to run on one engine. While President Bill Clinton signed the statute in 2000, in 2002 the Bush administration “unsigned” it out of fear that US nationals, particularly military personnel, could be put on trial before the ICC. At a time when the war in Afghanistan was raging and the Pentagon was drawing up plans to oust Saddam Hussein from Iraq, the administration’s fears were fully warranted.

Next, the administration went one step further and signed into law the American Service-Members’ Protection Act (ASPA), which explicitly protects US military personnel and government officials of any rank “against criminal prosecution by an international criminal court to which the United States is not party.” Numerous technicalities have also been invoked for the US’ defiance, such as Article 1, Section 8 and Article 3, Section 1 of the Constitution regarding the establishment of courts. Both sections can be interpreted as an explicit ban on international legal jurisdictions.

Naturally, the US could resort to other legal instruments to arrest individuals such as Bashir. Washington could call for a UNSC resolution obligating all member states of the United Nation (UN) to arrest Bashir and submit him to the ICC’s jurisdiction; or invoke the 1948 UN Genocide Convention, which obligates member states to prosecute perpetrators of genocide, as well as the Nuremberg Charter which established that heads of states indicted by international courts no longer enjoy immunity.

America’s role as self-proclaimed primary supporter of human rights makes it essentially unavoidable for the US to join the ICC. If the US insists on leading, then joining the ICC would show that it is serious in doing so. This move would represent the strengthening of the institution as well as of human rights in general. Thus, the US should at least embark on a course of legal convergence with the Rome Statute’s provisions by removing obstacles in domestic law and paving the way for full ratification.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

Photo Credit: ER09

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