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US threats over Afghan war probe ‘troubling’, says ICC

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Via Financial Times

The International Criminal Court president has hit back at the US for retaliating over the court’s moves to probe alleged offences committed during the Afghanistan war

Chile Eboe-Osuji said it was “very troubling” that Washington revoked the visa of Fatou Bensouda, ICC prosecutor, after she sought authorisation to investigate alleged war crimes and crimes against humanity by all sides in the central Asian country. 

“It is to be regretted and [is] very disappointing, in the sense that the United States is one country that has been credited with the modern appreciation of the rule of law,” Mr Eboe-Osuji said in an interview. “So on that basis it comes as a big surprise that you would get that kind of a threat against an international court of law exercising judicial independence.”

The president’s remarks came as he defended The Hague-based court’s handling of cases and warned it was caught up in the wider international backlash against multilateral institutions.

The near 17-year old judicial body has just launched its first independent expert review of its operations as it seeks to quell criticism that it works inefficiently and has focused too little on powerful states and too much on African countries. 

The ICC’s appeals chamber is due to rule soon on whether the Afghanistan investigation should be allowed to go ahead, after a first instance panel of court judges ruled in April that it would not serve the interests of justice. 

Washington revoked the chief prosecutor’s visa earlier this year as part of a wider stated policy of cancelling entry rights for ICC officials involved in investigating US personnel and possibly also those of allies, including Israel. 

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On Friday, the ICC prosecutor said she would launch a probe into alleged war crimes in the Palestinian territories of Gaza and the Israeli-occupied West Bank, pending confirmation by the court that these lie within its jurisdiction. Benjamin Netanyahu, prime minister of Israel — which is not a party to the ICC — and Mike Pompeo, US secretary of state, said the court had no such authority to investigate.

Mr Eboe-Osuji, a Nigerian national who has been an ICC judge since 2012 and its president since 2018, said he had recused himself from the Afghanistan appeal hearing so he would remain free to speak about the case. 

He acknowledged that if the court did not allow the Afghanistan probe to go ahead, it was likely to face accusations it had caved into pressure from the US — which is not an ICC member.

“That’s one of the dangers of that kind of threat the Americans made in this matter,” he said. “You cannot now escape the branding of the result in that way. But that should not stop the judges doing their work — and they must do their work to the best of their ability.”

He denied the authority of the court was being “chipped away” but said it was suffering from the “negative sentiment” aimed at multilateral institutions such as the World Trade Organisation.

The court has 123 member state signatories to its founding Rome Statute, but powerful nations including the US, China, Russia and India have never joined. 

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The Philippines pulled out of the ICC this year over the prosecutor’s 2018 decision to launch a preliminary investigation into President Rodrigo Duterte’s bloody drugs war. Myanmar — which is not member of the ICC — has criticised the court over its decision in November to authorise an inquiry into possible crimes committed against Rohingya Muslims who fled to neighbouring Bangladesh after a brutal military crackdown. 

“It’s not something that the ICC faces alone,” Mr Eboe-Osuji said of the criticism, adding that the court was a particular target because of its powers to impose long jail terms. “You can begin to see how that could cause some special concern in those who may not like the international order.” 

The senior judge said it was unfair to criticise the court over a record that stands at nine convictions and four acquittals. Prosecutors suffered a high-profile reverse this year when Laurent Gbagbo, the former Ivory Coast president during the country’s civil conflict, was acquitted of crimes against humanity charges after a three-year trial. 

“Whenever there’s an acquittal, there’s a huge controversy around that and then people will take that as a signal of failure,” Mr Eboe-Osuji said, adding that the very existence of the ICC had a deterrent effect on leaders considering using force to seize or hold on to power. “But I don’t see it all as a signal of failure. It’s a signal of strength.” 

He defended pressure by judges — including him — for the court to raise salaries that currently stand at 180,000 euros a year, tax-free. “In the 17 years of the court’s existence, judges have not had a cent of pay raise,” he said. 

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He said the court was attempting to improve the representation of victims in its procedures, a task that was “not easy” in cases where the numbers of those affected might run into hundreds of thousands. 

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