US Must Remain Wary of International Criminal Court Even After Decision to Not Target Americans
sAfter nearly 18 months of deliberations, the Pre-Trial Chamber of the International Criminal Court (ICC) decided on April 12 to reject the request from ICC prosecutor Fatou Bensouda to open an investigation into war crimes and crimes against humanity allegedly committed in Afghanistan since May 2003.
This is a long overdue and welcome decision for the U.S. and
removes, for the moment, the troubling prospect of the ICC issuing warrants for
U.S. officials and military personnel.
Nonetheless, it is worth noting that the Pre-Trial Chamber
agreed with the prosecutor that the situation in Afghanistan was justified
based on both jurisdiction and admissibility, but was nonetheless rejected due
to concern the International Criminal Court would not be able to try the case successfully
due to: inadequately preserved evidence; poor prospects for “securing
meaningful cooperation from relevant authorities”; and having to reallocate
limited financial and human resources to this investigation and away from “other
scenarios … which appear to have more realistic prospects to lead to trials and
thus effectively foster the interests of justice, possibly compromising their
chances for success.” With these concerns in mind, the Pre-Trial Chamber
In summary, the Chamber believes that, notwithstanding the
fact all the relevant requirements are met as regards both jurisdiction and
admissibility, the current circumstances of the situation in Afghanistan are
such as to make the prospects for a successful investigation and prosecution
extremely limited. Accordingly, it is unlikely that pursuing an investigation
would result in meeting the objectives listed by the victims favoring the
investigation, or otherwise positively contributing to it.
In other words, the rejection because of practical concerns,
not legal ones. As noted
by the Office of the Prosecutor,
The Office of the Prosecutor notes that the Judges of Pre-Trial Chamber II are satisfied that there is a reasonable basis to believe that crimes under the jurisdiction of the International Criminal Court have been committed in Afghanistan, and that the requirements of gravity and complementarity have been met. The Pre-Trial Chamber then refused to authorize an investigation on its assessment of the interests of justice. The Office will further analyze the decision and its implications, and consider all available legal remedies.
The possibility of an appeal exists. However, it is reassuring
that even International Criminal Court advocates believe that the basis of the
decision – that opening an investigation is not in the interests of justice –
makes a successful appeal
of the decision unlikely.
Following the decision, Secretary of State Mike Pompeo noted,
“This decision is a victory for the rule of law and the integrity of the ICC as
an institution, given the United States is not subject to the ICC’s
jurisdiction.” It is indeed a victory, but it does not resolve the fundamental
conflict between the U.S. and the International Criminal Court.
Regardless of the Afghanistan decision, the International
Criminal Court still claims authority to investigate the U.S. in certain
circumstances despite the U.S. not being a party to the Rome Statute, rejecting
ICC jurisdiction over U.S. persons, and taking steps to insulate itself from
ICC jurisdiction. Although the U.S. has occasionally
supported ICC efforts to bring criminals to justice, the U.S. has repeatedly
the ICC at arm’s length even under President Barack Obama.
Although the immediate dispute appears to be resolved, the
U.S. could again find itself in a similar dispute with the International
Criminal Court. The decision does not amend the Rome Statute, reform the International
Criminal Court, or alter the jurisdiction of the ICC to prevent the Court from investigating
similar cases in the future.
This underscores the wisdom
of the U.S. decision to forego ratification of the Rome Statute, enact laws
circumscribing U.S. engagement with the ICC, and recent decisions that, in the
words of Pompeo,
“protect allied and American military and civilian personnel from living in
fear from unjust prosecution for actions taken to defend our great
Although this experience and other recent
the ICC should lead the ICC and States Parties to reevaluate the trajectory of
the Court, this is far from certain. As it stands, President Donald Trump is
correct to warn,
“Since the creation of the ICC, the United States has consistently declined to
join the court because of its broad, unaccountable prosecutorial powers; the
threat it poses to American national sovereignty; and other deficiencies that
render it illegitimate. Any attempt to
target American, Israeli, or allied personnel for prosecution will be met with
a swift and vigorous response.”