The United States and the International Criminal Court At Odds, Once Again

By Connor Gallagher
Connor Gallagher is a sophomore at the University of Pennsylvania studying Chemical Engineering.

On November 3rd, the top prosecutor of the International Criminal Court, Gambian Fatou Bensouda, announced that she is seeking to investigate the United States Armed  Forces  and the CIA for war crimes committed during the War in Afghanistan from 2003 to as recently  as 2014. [1] One year ago, Bensouda released a report claiming that “members of the US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, [and] outrages upon personal dignity on the territory of Afghanistan” and that “members of the CIA appear to have subjected at least 27 detained persons” to the same crimes, as well as “rape on the territory of Afghanistan and other States Parties,” including Poland, Romania, and Lithuania. [2]

As with any international organization, there are serious questions as to whether the International Criminal Court does in fact have jurisdiction over the American agents under investigation.

The International Criminal Court (ICC) derives its authority from a treaty known as the Rome Statute. [3] Adopted in 1998 and entered into force in 2002, the Rome Statute grants the ICC power to investigate and prosecute genocide, crimes against humanity, war crimes, and the crime of aggression. The last crime is defined to be “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any manner inconsistent with the Charter of the United Nations.” [4]

The ICC is adamant in its literature that it is not designed to replace national judicial systems. The Rome Statute explicitly dictates that the ICC is not permitted to investigate and prosecute cases “unless the State [which has jurisdiction over it] is unwilling or unable genuinely to carry out the investigation or prosecution.” [5] Accordingly, the ICC believes its mission is  to “put an end to impunity for the perpetrators of the most serious crimes” in cases where a State Party cannot or will not prosecute. [5]

However, the United States’ relationship with the ICC has been a contentious one. President Bill Clinton signed the Rome Statute on literally the last day the treaty allowed him to do so, December 31, 2000. His remarks that day did not express much commitment to the cause, but instead they featured language that has come to dominate discourse about international agreements in the United States: “With signature…we will be in a position to influence the evolution of the court. Without signature, we will not.” [6] Moreover, President Clinton urged his successor, George W. Bush, not to submit the treaty for ratification to the United States Senate, as is required by Article II, Section 2 of the Constitution. Thus, the United States remains a signatory to the Rome Statute, but not a State Party to the Court.

Such a sour relationship between the United States and the ICC has not dissuaded Bensouda from proceeding with her investigation. In fact, she defends the ICC’s involvement on the grounds that the United States has abdicated its duty to prosecute war crimes, which falls under the “unwillingness” standard conferring jurisdiction upon the ICC. Bensouda maintains that no “individual in the armed services [was] prosecuted by courts martial for the ill-treatment of detainees within the [ICC’s] temporal and territorial jurisdiction” in Afghanistan, a State Party. [7] In addition, her report finds that the Department of Justice completed investigations into only two detainees who died during CIA interrogation, neither of which returned an indictment or prosecution. [7]

American objections to the ICC fall into two primary categories. First, and particularly pressing in this new case, American leaders question the Court’s presumptive extension of jurisdiction over non-States Parties, such as the United States, for crimes committed against States Parties, such as Afghanistan. However, the United States is a member of the United Nations, which binds it to uphold certain “peace-loving” conduct with other members, and has its own laws that open perpetrators of war crimes to prosecution. [8, 9]

In other words, the United States could wholly avoid the ICC’s jurisdiction––with the ICC’s blessing––through a more substantive and transparent investigation of alleged illicit war-zone activity. On top of that, the United States is a permanent member of the U.N. Security Council, which grants it powers to influence who the Court decides to prosecute. [10] The argument that the United States can justify directing the Court from the Security Council but be completely immune to that Court’s jurisdiction otherwise borders on indefensible.

Second, the United States worries that the Court does not provide constitutionally equivalent due process protections to potential American defendants. This is almost certainly the weakest argument the U.S. government can proffer, as the ICC has adopted practically the entirety of the Bill of Rights. Such protections include right to counsel, right to be informed of charges against him/her, right to adequate preparation for trial, right to a speedy trial, right against self-incrimination, right to receive any exculpatory evidence in possession of the prosecution (Brady evidence in the U.S.), right to cross-examine witnesses, a presumption of innocence, and the “reasonable doubt” burden of proof on the prosecution. [11, 12]
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Nonetheless, the United States does share, in its rhetoric, the ideals of the ICC. In those same remarks where President Clinton offers lukewarm American support for the Court, he praises the United States’ “long history of commitment to the principle of accountability, from our involvement in the Nuremberg tribunals…to our leadership in the effort to establish the International Criminal Tribunals for the Former Yugoslavia and Rwanda.” He continued to describe the crimes over which the ICC has jurisdiction as “the most heinous abuses that result from international conflict” and “reaffirm[ed]” the United States’ “strong support…for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity.” [6]

Yes, the United States stands eloquently opposed to genocide and crimes against humanity, but with the precondition that it not be held to its own moral standards. The United States wants accountability for foreign terrorists but no due process, and due process for its military and intelligence agents but no accountability. I consider this disparity to be an affront to American ideals, no matter how vile or honorable the cause of a defendant. If the United States does actually adhere to its self-proclaimed values, it should welcome the jurisdiction of a court that reinforces those values with nothing to fear.

1. Rick Gladstone and Marlise Simons, “Hague Prosecutor Seeks to Pursue Afghan Case That Could Ensnare Americans,” The New York Times, November 3, 2017. https://www.nytimes.com/2017/11/03/world/asia/international-criminal-court-afghanistan-united-states.html.
2. “Report on Preliminary Examination Activities 2016,” The Office of the Prosecutor, International Criminal Court, November 14, 2016, at 47. https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf.
3. Rome Statute of the International Criminal Court, effective July 1, 2002. https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf.
4. “Crime of aggression,” International Crimes Database Project, 2013. http://www.internationalcrimesdatabase.org/Crimes/CrimeOfAggression.
5. “Understanding the International Criminal Court,” International Criminal Court. https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf.
6. “Clinton’s Statement on War Crimes Court,” BBC News, December 31, 2001. http://news.bbc.co.uk/2/hi/1095580.stm.
7. “Report,” supra n. 2, at 49.
8. United Nations Charter, Article 4. http://www.un.org/en/charter-united-nations/.
9. Theresa Young Reeves, “A Global Court? U.S. Objections to the International Criminal Court and Obstacles to Ratification,” Human Rights Brief, 2000. http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1472&context=hrbrief.
10. Rome Statute, supra n. 3, Articles 13(b) and 16.
11. Ibid.
12. Rome Statute, supra n. 3, Article 67.
​Photo Credit: Flickr User/United Nations Photo www.flickr.com/photos/un_photo/

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