In the twenty-five years since the United States led efforts to establish international war crimes tribunals for the former Yugoslavia and Rwanda – giving birth to the modern era of international criminal justice – the framework for global criminal justice has become much more robust. In this time period, a number of international, hybrid (mixed international/domestic), and specialized domestic courts have been created to provide accountability for perpetrators of mass atrocities. Currently, though, the International Criminal Court (ICC) is the sole fully internationalized criminal tribunal, and with 123 member-states that are parties to the treaty that created it, it is unlikely that any additional fully internationalized tribunals will be created in the foreseeable future. As a result, the ICC plays a critical role in dispensing justice in those situations where domestic or hybrid approaches are not viable. The U.S. came to recognize this when attempting to respond to mass atrocities in Darfur and Libya, ultimately supporting UN Security Council referrals of those situations to the ICC. The U.S. similarly supported a referral of the Syria situation to the Court, but Russia and China vetoed a Security Council resolution that would have done so. For these most egregious of situations, the ICC has been seen as the only option for pursuing genuine accountability and its possible role in a range of contexts has served to promote justice as a key goal in policy debates. The ICC has also conducted investigations or prosecutions in a number of other cases, addressing mass atrocities committed in conflicts in places such as the Democratic Republic of Congo, Uganda (Lord’s Resistance Army), Cote d’Ivoire, and the Central African Republic. The Court has also played an important role in promoting domestic accountability in countries such as Colombia, where the ICC has helped to catalyze national efforts to address atrocity crimes and promote transitional justice.
It should be noted that the ICC is not without flaws. It has been very costly (its budget to date has been approximately $1.5 billion) and it has been criticized for the low number of convictions that it has been able to secure since its inception. While progress in some cases has been impeded by a lack of state cooperation in arrests, court officials must draw lessons to improve the efficiency and effectiveness of proceedings. The ICC has also been criticized for its lack of internal institutional accountability, its perceived political bias, and – by some leaders in Africa particularly – for being an instrument of Western neo-colonialism. Critics in the United States have frequently complained about the lack of adequate checks and balances on the ICC Prosecutor and have expressed concern that bias against the United States (and Israel) may lead to politically-motivated prosecutions of its citizens. These debates regarding the ICC and the United States’ role in it are not new; they have been ongoing since the Court’s creation in 1998. However, it is highly unlikely that any U.S. administration would cooperate with any effort by the ICC to investigate or prosecute American citizens.
In principle, the ICC is intended to serve as a justice institution of last resort; i.e., in situations where those accused of crimes are not investigated or prosecuted by domestic authorities because the state in which the crimes were committed and/or the state of their citizenship does not have the capacity or political will to do so. Thus, no case would be “admissible” before the ICC if the matter in question has been investigated or prosecuted in a genuine manner within the domestic judicial process in the U.S. An ICC inquiry, as the ICC prosecutor is currently seeking authorization from the court’s judges to pursue, into allegations of detainee abuse by U.S. persons in Afghanistan, alongside alleged abuse committed by Afghan forces and the Taliban, would have to be predicated on findings that the U.S. failed to adequately investigate or prosecute those allegations in good faith.
The U.S. relationship with the ICC, over the period since 1998, has ranged from case-by-case cooperation to respectful skepticism to outright hostility. The Clinton Administration actively engaged in the negotiations to create the ICC, and despite misgivings about the final form of the Rome Treaty (establishing the ICC), signed it in late 2000. The George W. Bush Administration actively opposed the Court during its first term but took a much more pragmatic, and even supportive, approach toward the Court, during its second term. The Obama Administration continued in this direction and further institutionalized cooperation with the ICC on a case-by-case basis, consistent with U.S. laws and interests. The Trump Administration has not taken any concrete steps toward the ICC, but it has announced its intention to actively oppose the Court should it move forward with investigations in Afghanistan and/or Israel/Palestine.
Notwithstanding the ups and downs of its relationship with the ICC in recent years, the United States, starting as early as the 1860s when it issued instructions to its soldiers about proper conduct during war, has always been at the forefront of efforts to protect civilians and promote accountability for those who have violated the laws of war. The United States has been a global leader in fighting impunity through its support for the Hague and Geneva Conventions and in its efforts to establish war crimes tribunals such as those at Nuremburg and Tokyo, created in the aftermath of World War II; the Yugoslavia and Rwanda tribunals; the hybrid courts for Sierra Leone, Cambodia and Lebanon; and a myriad of domestic war crimes courts. The U.S. military has traditionally supported international humanitarian law enforcement because it reinforces U.S. adherence to the laws of war and helps protect our soldiers from abuse and mistreatment in overseas conflicts. It is critical that the U.S. maintain its leadership role and influence by working with established institutions on these issues, including the ICC, and not repeat mistakes of the past.
Recommendations for the U.S. administration and Congress on working with the ICC include:
- – Bolster U.S. domestic law provisions to deal with all potential violations of accepted international humanitarian law precepts and ensure that thorough investigations are conducted by U.S. law enforcement authorities when credible allegations of wrongdoing are made against U.S. citizens.
- – Consistent with the ICC’s guiding principle of complementarity, continue to support appropriate accountability initiatives, in the form of domestic and hybrid war crimes courts, that can address mass atrocity cases in lieu of or in addition to the role of the ICC.
- – Recognize that the ICC has an important role to play as the only fully international criminal tribunal currently existing, as it will likely be the only venue available to pursue accountability for mass atrocities in many situations – a matter in the national interest of the United States.
- – Support, in the UN Security Council, referrals of situations to the ICC when it is appropriate in the absence of other viable options for pursuing accountability for mass atrocities, bearing in mind the court’s role to bring to justice those most responsible for grave crimes.
- – Recognize that virtually all of our closest allies (NATO and EU member states, Australia, Japan, South Korea) with which the U.S. has closely collaborated in addressing mass atrocity crimes in the past strongly support the ICC, and that U.S. opposition to it undermines this vital coalition of free, democratic countries who are uniquely positioned and have the political will to prevent and respond to such crimes.
- – Maintain a respectful working relationship with the ICC in order to more effectively engage with allies and the Court itself to address U.S. concerns about the ICC’s operations and its governing law, and avoid turning disagreement over and refusal to cooperate with or support an investigation of U.S. nationals should the ICC proceed with a case for alleged crimes in Afghanistan into a broader assault on the ICC as an institution.
- – Refrain from negotiating new Article 98 agreements, as this practice proved unproductive in the past, serving to reinforce global perceptions of U.S. hypocrisy, creating conflict with allies, and undercutting military relationships with countries with which we have important interests.
- – Reject proposals for punitive measures against individuals associated with the ICC including efforts to sanction ICC judges, prosecutors and other officials or ban them from entering the U.S., as well as proposals to take into account cooperation with the ICC when making foreign assistance decisions, as such actions would be counterproductive and serve to increase tension with our allies.
- – Ultimately, while agreeing to disagree with the ICC when it is seen as acting contrary to U.S. interests, otherwise engage in a constructive manner with the Court and support its efforts to investigate and prosecute perpetrators of the worst mass atrocities around the world in situations where doing so would serve U.S. interests.
* The Democracy & Human Rights Working Group is a nonpartisan initiative bringing together academic and think tank experts and practitioners from NGOs and previous Democratic and Republican administrations, seeking to elevate the importance of democracy and human rights issues in U.S. foreign policy. It is convened by Arizona State University’s McCain Institute for International Leadership. The views expressed here do not necessarily represent the positions of individual members of the group or of their organizations.
Image: UN Photo/Rick Bajornas