The September Statement by the ICC Prosecutor on Alleged U.S. War Crimes Marks a Historic Low

The September Statement by the ICC Prosecutor on Alleged U.S. War Crimes Marks a Historic Low

By Walter Bonné, Senior Online Editor, N.Y.U. Journal of International Law & Politics

Introduction

In another blow to the legitimacy of the International Criminal Court (ICC) – at least in terms of its ability to adjudicate crimes committed by powerful states –Chief Prosecutor Karim Khan announced that the Court will resume investigating war crimes committed in Afghanistan,  but “deprioritise” crimes committed by the United States and its allies. This decision disappointed many,  including the ACLU, who hoped that the ICC would investigate potential war crimes, including allegations of torture and indiscriminate drone strikes committed by the United States and its agents.  Powerful states like the United States have a long history of non-compliance with the ICC, using a variety of legal tools to evade ICC jurisdiction and disrupt the ICC’s business-as-usual investigations. This most recent announcement represents a historic low point – the first time that U.S. unaccountability manifested itself from within the ICC institution, through an official statement by the ICC Chief Prosecutor. As opposed to previous U.S. evasion, which manifested through external acts committed by the United States, the ICC’s present position, sourced from the institution itself, has the potential to result in lasting reputational harm.  Perhaps most notably, the Chief Prosecutor’s statement represents a striking blow to legal scholars defending the “realness” of international law. And perhaps more concerningly, while the ICC’s statement appears to just give the United States a pass, the implications of its decision will likely benefit authoritarian leaders like President Putin, who have more damning records of war crimes.

The United States’ Turbulent Relationship with the ICC

The United States has objected to international criminal scrutiny since the very founding of the ICC. In 1998, the international community gathered together to vote in favor of adopting the Rome Statute, the treaty that created the Court. While 120 countries voted in favor of adopting the Rome Statute, only 7 countries voted against adoption: China, Libya, Iraq, Israel, Qatar, Yemen, and the United States. Despite President Clinton signing the statute in 2000, it was never ratified, and the Bush administration later informed the U.N. Secretary General that the United States would not ratify the statute and that it “[had] no legal obligations arising from its signature.” This has fundamental implications because the ICC can only exercise jurisdiction over territories that are state parties to the Rome Statute. As a result, if an alleged crime occurs within the territory of a state that is not a party to the treaty, the ICC generally cannot move forward with an investigation.

However, there is a caveat. The ICC may exercise jurisdiction over non-state parties when those states commit alleged acts within the territory of states that have ratified the treaty. At first glance, this appears to be a potential way to prosecute U.S. war crimes committed within the territory of a state that has adopted the Rome Statute – for example, Afghanistan. However, the United States has managed to avoid accountability in this context as well. Article 98(2) of the Rome Statute states that the “Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements . . . .” The United States, beginning in 2002, exploited this provision by negotiating numerous “Article 98” agreements. Signatories of these agreements agree not to surrender Americans to the jurisdiction of the ICC. The United States has concluded over 100 of these agreements, including one with Afghanistan. These Article 98 agreements insulate the United States from ICC prosecution.

The Bush administration doubled down on these avoidance mechanisms domestically by passing the American Service-Members’ Protection Act in 2003. Known as the “Hague Invasion Act,” the statute authorizes “the use of military force to liberate any American or citizen of a U.S.-allied country being held” by the ICC, located in the Hague, and was largely intended to intimidate state parties to the ICC. During the Obama administration, the U.S. cautiously improved its relationship with the ICC, while also preserving much of the Bush administration’s avoidance mechanisms.

While the Bush administration used formal legal mechanisms to evade ICC jurisdiction, the Trump administration dispensed with the legal niceties and adopted an openly hostile attitude toward the court. In 2020, after the ICC announced its investigation into possible war crimes committed by U.S. forces in Afghanistan, the Trump administration responded with a series of sanctions on the personal assets of ICC Chief Prosecutor Fatou Bensouda and ICC Head of Jurisdiction Phakiso Mochochoko. The sanctions added the ICC attorneys to the Treasury Department’s “Specially Designated Nationals” list, freezing any assets that are within or subject to U.S. law. The move was immediately criticized by human rights groups. In leveling sanctions, the Trump administration placed the public face of the only institution in the world capable of prosecuting international criminal acts like genocide and crimes against humanity on the same list as international terrorists and transnational organized crime narcotics traffickers. The Biden Administration subsequently lifted the sanctions, but under an implicit understanding that the court would terminate any probes of U.S. crimes.

Legitimacy and Reputational Implications

It is not novel to conclude that international law lacks enforceability against powerful states. But the ICC’s statement goes beyond disappointing legal scholars that argue the sanctity of international law. For vulnerable populations in third world countries with ineffective domestic judiciaries, the ICC provides crucial safeguards. For example, the ICC “offers ordinary Africans a real alternative to hold their leaders accountable, to finally end . . . impunity, and stop leaders from getting away with the most brutal crimes.” For those ICC constituents that rely on the court to protect their rights, it is one thing to see powerful states utilize their political leverage to avoid the court’s jurisdiction. It is another thing entirely to see the ICC –the only neutral arbiter of international criminal law in the world– publicly declare that international legal accountability only applies to certain participants. The ICC’s announcement will force constituents to reckon with the ICC’s impartiality and neutral investigative powers, understanding that their rights under international law only matter when they are violated by the least powerful states.  Previously, a reasonable observer could conclude that the ICC maintained impartiality, but lacked the resources or enforcement capability to prosecute powerful actors. Now, an observer may reasonably conclude that the ICC also lacks impartiality, looking less like an independent institution, and more like a puppet controlled by a puppeteer. Jennifer Gibson, attorney from the human rights group Reprieve, accurately recognized that the Chief Prosecutor’s statement appeared as if the United States “wrote the script for him.”

Most worrisome, the ICC’s statements provide a “get-out-of-jail-free-card” to authoritarian bad-actors. Leaders of powerful states will be emboldened to act with impunity, recognizing that their illegal actions not only lack consequences, but will likely never be recognized or contemplated by higher authorities. Even when the ICC commits to investigating war crimes, bad actors will be emboldened in their rejection of ICC legitimacy, citing the court’s cahoots with the United States. At worst, the September announcement represents long-lasting damage to the ICC’s legitimacy and reputation. At best, it provides corrupt bad actors with an additional excuse to evade international criminal law. In light of the global rise in authoritarianism and the increasing acceptance of war crimes in the pursuit of territorial expansion, it is apparent that the ICC must be reformed.  While Prosecutor Khan’s recent decision to investigate Russian war crimes in Ukraine may appear like a positive development for ICC legitimacy, realists and institutionalists still have reason to worry.