On behalf of the Norwegian Helsinki Committee, I write to you to express our concern about statements made by the United States Secretary of State Michael Pompeo during a State Department press briefing on 17th March.
If possible, I would like to meet you in person with my team to discuss the following matter.
In his opening remarks Mr. Pompeo addressed the investigation of the International Criminal
Court (ICC) into alleged crimes against humanity and war crimes committed in Afghanistan
since 1th May 2003. According to the transcript published yesterday by the State Department,
Mr. Pompeo said:
“Turning to the ICC, a so-called court which is revealing itself to be a nakedly political body:
As I said the last time I stood before you, we oppose any effort by the ICC to exercise jurisdiction over U.S. personnel. We will not tolerate its inappropriate and unjust attempts to investigate or prosecute Americans. When our personnel are accused of a crime, they face justice in our country.
It has recently come to my attention that the chef de cabinet to the prosecutor, Sam
Shoamanesh, and the head of jurisdiction, complementarity, and cooperation division, Phakiso
Mochochoko, are helping drive ICC prosecutor Fatou Bensouda’s effort to use this court to
investigate Americans. I’m examining this information now and considering what the United
States’ next steps ought to be with respect to these individuals and all those who are putting
Americans at risk.
We want to identify those responsible for this partisan investigation and their family members
who may want to travel to the United States or engage in activity that’s inconsistent with making sure we protect Americans.
This court, the ICC, is an embarrassment. It’s exposing and – we are exposing and confronting its abuses, and this is a true example of American leadership to ensure that multilateral institutions actually perform the missions for which they were designed.”
These remarks undermine the international legal order. They are reminiscent of
denouncements of international courts made by political leaders that American leaders
normally would not want to be associated with. Former Serbian President Slobodan
Milosevic told the judges at the International Criminal Tribunal of the former Yugoslavia
(ICTY) in the Hague that “I consider this tribunal a false tribunal and the indictment a false
indictment”.
The administration of George W. Bush did not agree with him then. Indeed, the United
States played a pivotal role in establishing and funding the ICTY and other international
courts, just as the US was the central actor in the establishment of the United Nations after
the second world war. Although the United States never ratified the Rome Statute of the
ICC, president Clinton did sign it. The Obama administration participated at the ICC as an
observer and supported the Court in its efforts to have indictees arrested.
The ICC is now undergoing extensive review and reforms are under way that will hopefully
improve and strengthen the Court. The EU, Norway and a number of states around the
world is fully behind these efforts based on a view that the ICC plays a crucial role in
ensuring accountability for international crimes, including by putting pressure on states to
prosecute their own citizens who may have committed such crimes.
As you are aware of, authoritarian leaders often criticize the ICC, and in a few cases
countries that were under well-founded investigations withdrew from the Court. In Sudan,
on the other hand, the new democratically inclined government is now stepping up
cooperation with the ICC in order to lay the foundations for a better, more just future.
This is one among many examples that those who cherish democracy tend to support the
ICC and the system of justice that it represents.
The international legal and political order has never been a perfect construction, but without
the United States it would not have existed at all. For more than four decades we have felt
the moral support of the United States, including when our staff members have been
denounced and banned by other states for their human rights work and when our clients
have been in life-threatening situations.
Given this backdrop, it is deeply disappointing to read Mr. Pompeo’s accusations against the
ICC. It is sad to see a United States Secretary of State threaten the families of its officials with
sanctions. We do not recognize the voice of the State Department in these statements.
This is why I and my team would like to meet you to discuss the role of the ICC in general
and its Afghanistan investigation in particular. If a meeting in person remains difficult due to
the threat from the Coronavirus, we may also arrange for a telephone conference on these
issues.
Yours sincerely,
Bjørn Engesland
Secretary General