The U.S. and the International Criminal Court: failing to lead by example

BRITTANY FINNEGAN—In March, the International Criminal Court (“ICC”) authorized Chief Prosecutor Fatou Bensouda to open an investigation into alleged war crimes in Afghanistan. Bensouda, in her request for an investigation, attributed acts of war crimes and crimes against humanity to United States forces and intelligence personnel, in addition to Taliban and Afghan forces. The ICC, established 15 years ago, has jurisdiction over the most heinous international crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.  This is the first time, however, since the creation of the ICC, that the prosecutor has been authorized to investigate U.S. forces.

The jurisdiction of the ICC is based on the Rome Statute, a treaty that the U.S. (along with China and Russia) is not a party to. Under the Rome Statute, the ICC can exercise jurisdiction when a case is referred to it by the United Nations Security Council, or by another State Party, or if the ICC prosecutor has initiated an investigation authorized by the Pre-Trial Chamber. When a case is referred to the ICC by the Security Council, territoriality and nationality are not required to establish jurisdiction, and the Court can prosecute Non-State Parties regardless of where the actions took place. However, if the case is referred by another State Party, or if preliminary examinations are initiated by the Prosecutor, the ICC only has jurisdiction when the crime in question was committed on the territory of a State Party or if the crime was committed by a national of a State Party.

Here, to investigate crimes in Afghanistan, Bensouda was required to seek approval by the Pre-Trial chamber. The case was not referred to the ICC by the Security Council (which the U.S. is a permanent member of and enjoys veto power), and the U.S., as a Non-State Party, does not recognize the ICC’s jurisdiction. However, because Afghanistan became a State Party in 2003, any actions committed on Afghanistan territory fall under the ICC’s jurisdiction. The case, therefore, is an example of where Non-State Parties to the Rome Statute may still be investigated or prosecuted for actions committed in the territory of a State Party.

The U.S. has avoided prosecution by the ICC for years, arguing any interference by the ICC would jeopardize national security and interfere with national sovereignty, even going so far as to revoke Prosecutor Bensouda’s U.S. visa. Secretary of State Mike Pompeo, stated that the U.S. government “will take all necessary measures to protect our citizens from this renegade, unlawful, so-called court.” The U.S. national security advisor, John R. Bolton also declared that the U.S. will not cooperate with any ICC investigation, and denounced the ICC as “illegitimate.”

While the U.S. criticizes the ruling, human rights organizations across the world have applauded the ICC’s decision, citing it as a source of hope for victims of international crimes. Director of the American Civil Liberties Union’s Human Rights Project, Jamil Dakwar, stated in a New York Times article: “This decision vindicates the rule of law and gives hope to the thousands of victims seeking accountability when domestic courts and authorities have failed them.”

So, what is the importance of all of this? As a leader on the world stage, the U.S. has an principal role in setting the standard for protecting human rights. However, the U.S.’s abstention from the Rome Statute questions its commitment to prosecuting and holding perpetrators of abuses accountable. Additionally, the actions of U.S. officials in the wake of the recent ICC decision, and the hostile denouncement of the ICC, make it very clear that the U.S. has no intention of setting a good example of cooperating with international bodies in the quest against human rights abuses. If the U.S. refuses to acknowledge the jurisdiction of the ICC, what is stopping other countries from doing the same? While State sovereignty is important in the international legal sphere, prosecuting heinous international crimes is even more vital to the rule of law.