At the height of the pandemic Covid-19 that has shaken the planet, Washington wanted to pay the chinese government for its failures. For several weeks, the political leaders – Donald Trump in the lead – have accused China of being late to communicate the gravity of the situation and have downplayed the number of deaths from the coronavirus. Lawyers, activists and elected republicans have increased requests for referrals to the international criminal Court (ICC), invoking the need to punish the chinese State. It is both impossible – since the United States does not recognize the ICC, having not ratified the Rome Statute – and very surprising when one knows the hostility of the country with respect to international justice.
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But since June 11, 2020, the ICC is again the target of United States. Donald Trump has signed a presidential decree announcing economic sanctions against judges and ICC officials. He reproaches the Court for having launched an inquiry into possible war crimes committed by the United States during the war in Afghanistan. An investigation that would be " a threat to national security ", according to president Trump. "It is a good illustration of the tensions that weigh on international justice, which is used here as a tool of realpolitik, it perfectly underlines the position of the United States vis-à-vis the international justice," says Raphaëlle Nollez-Goldbach, a researcher in international law at the CNRS and the ENS.
practices are used during interrogations in question
The investigation the ICC aims of the taliban, the afghan army, but also the techniques used during interrogations conducted by u.s. military or CIA agents in the centres of interrogation secrets that were created after 2003. The prosecutor of the ICC and the judges are supported on reports of the u.s. Senate, published after the commissions of inquiry. These are reports of practices of interrogation such as waterboarding (torture by water), but also the isolation, the retention on the light 24 hours on 24 or nudity.
If the prosecutor has requested the opening of an investigation as early as 2017, the Court finally declared itself incompetent in 2019. "The prosecutor had appealed this decision and the United States, in response, had already taken sanctions against the Court. In April 2019, a presidential decree had been signed to revoke the visa of the prosecutor of the ICC. An act obviously symbolic, " says Raphaëlle Nollez-Goldbach. Suspended, the investigation had not resulted in the issuance of any arrest warrant. But on march 5, last, bounce, the appeals chamber of the Court again allowed the opening of an investigation in Afghanistan (a country that has ratified the Rome Statute), again causing the ire of Washington.
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once Again, the pressure is still rather symbolic, to the extent that the ICC may not take any sanctions against a State. It cannot in fact decide on the guilt of an individual. In the framework of the investigation into the crimes possibly committed during the war in Afghanistan, the ICC could not, therefore, that issue warrants of arrest against persons. "To judge of the responsibility of an American during a trial, it would first proceed with an arrest and then a transfer to The Hague [where the ICC, ED.]. It is an assumption that is pretty unlikely, to the extent that the ICC has no police force and depends entirely on the cooperation of States ", stresses Raphaëlle Nollez-Goldbach.
"A serious attack"
For the researcher, this dispute perfectly illustrates the debate that exists around international justice, submitted to very " large limits ". "We can ask ourselves what is the interest to open this kind of investigate and issue arrest warrants that will not be successful. But on the other hand, total inaction would return a disastrous image. It is not necessary to give the impression that there is only a justice of the powerful, " says Raphaëlle Nollez-Goldbach.
The France reiterates its full support to the ICC, "the only permanent international criminal court and universal"
normally quite discrete about these matters, France and Europe have expressed their "dismay" at the announcement of the us decision. "This decision represents an attack to be severe against the Court and, beyond, a calling into question of multilateralism and of the independence of the judiciary ", said the French minister of foreign Affairs Jean-Yves Le Drian.
" France reiterates its full support to the ICC [...], the only permanent international criminal court and universal vocation. It plays a vital role in the fight against the impunity of the perpetrators of the most serious crimes. It thus makes a response to the need for justice of victims of such crimes and contributes to peace and international stability ", said the head of French diplomacy. The minister also called on Washington to reverse its decision while stating that Paris would " continue to act to ensure that the Court is able to fulfil its mission independently and impartially, in accordance with the Statute of Rome ".