The US declares war on the ICC
The United States has once again demonstrated to the world that it has surrendered its role as the torchbearer of the rules-based international order with the threats made by its Secretary of State Marco Rubio against the International Criminal Court (ICC).
In an opinion column he wrote in the Wall Street Journal last Monday, Rubio vowed that the US will launch “a whole-of-government response to systematically disable” and destroy the ICC “brick by brick.” The US official also declared that his country will urge countries receiving US military and security assistance to “reject the ICC’s purported authority to prosecute American officials and servicemen.” Rubio further warned that “nations that refuse to reject the ICC’s false authority while relying on US assistance are likely to come under increased scrutiny.”
These recent US tirades against the ICC are an escalation of the sanctions it already imposed against 11 high-ranking ICC officials, including three at the Office of the Prosecutor and eight ICC judges. Among those sanctioned are Deputy Prosecutor Mame Mandiaye Niang, who heads the prosecution team in the Rodrigo Duterte case, and Judge Nicolas Guillou, who is one of the three judges of ICC Trial Chamber III, which hears the Duterte case.
There was no specific reason cited by Rubio that triggered the US threats. Since the US is not an ICC member, its officials are generally not within the jurisdiction of the ICC to prosecute. However, there are exceptions when US officials may come within the ICC jurisdiction. These are when the US commits ICC crimes against citizens or inside the territories, of ICC-member countries.
With the exceptions, there are several scenarios where US officials can face ICC prosecution. First, the involvement of US military officials in war crimes or crimes against humanity committed when the US occupied Afghanistan (an ICC member). Second, the US bombing of boats it suspected of transporting illegal drugs within the waters of South and Central American countries. All countries of South America are ICC members. All countries of Central America are also ICC member countries, except for Nicaragua. Third, US complicity in Israel’s international crimes committed in the State of Palestine (an ICC member).
A fourth exceptional instance in which the ICC may acquire jurisdiction to prosecute US officials is if the succeeding US administration will voluntarily consent to the ICC’s exercise of jurisdiction on an ad hoc basis with respect to ICC crimes committed within US territory and perpetrated by US nationals.
Even in the exceptional circumstances when the ICC will have jurisdiction to investigate and prosecute US officials, the court will not automatically attempt to exercise jurisdiction. The international tribunal will first find out if there are genuine efforts being exerted under the US domestic justice system to investigate and prosecute its, by then, former public officials. If genuine domestic investigation is ongoing, the ICC will refrain from conducting an investigation.
Will the Philippines be subjected to pressure and sanctions by the US on the ICC issue? No chance at all. First, the Philippines is no longer an ICC member country. Second, it’s to the US’ advantage that Duterte remains in ICC detention, disabled from assisting his daughter in winning the presidency in 2028, because the Dutertes are known pawns of China, the US nemesis in Asia.
Will the US be able to convince or coerce the 125 member countries to withdraw from the ICC? The countries that will get attracted to US entreaties will be those ruled by leaders who also face potential liabilities for ICC crimes. Any coercive moves by the US to impose economic sanctions or to withdraw military support against certain countries will have double-edged consequences. Economic sanctions will negatively impact the substantial business interests of US companies (and affect US tax revenues) in the targeted countries. Withdrawal of military support will weaken US influence and will benefit US rivals. The US has also lost tremendous goodwill and has generated widespread resentment worldwide because of the economic hardship brought about by its reckless war against Iran, its blind support for Israel’s genocide in Palestine, and its racist immigration policies.
Sanctions imposed by the US itself against the ICC as an institution will still result in great difficulties for the ICC’s operations because they will affect its personnel’s access to banking, travel, software, online apps, and a slew of other matters that are essential in people’s lives.
The hardships that will be caused by US harassment against the ICC and its member countries will merely have a temporary impact, however, because those affected will eventually find ways to decouple their lives or their economies from US connections and pivot toward power centers that are US rivals. What the US fails to fathom is that, by its conduct as an international rogue state, the damage to its economy, reputation, influence, and its future will be permanent and irreparable.
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