Whose Court is Highest in the Land: The U.S.’s ICC Quandary

The Trump Administration announced an Executive Order (EO) this past month that placed heavy sanctions against the International Criminal Court (ICC). The sanctions are stemming from the ICC’s active investigation into the U.S. for its actions in Afghanistan during the 2003-2006-time frame. The ICC Prosecutor perceives that the U.S. has failed to prosecute its members for human rights violations and wants to prosecute them instead. This conflict has led to a critical impasse between the U.S. and the ICC and will have a detrimental effect on human rights.

Background

Since 2002, the International Criminal Court (ICC) continues to operate as a transnational mechanism for punishing individuals who have committed war crimes, and crimes against humanity. Currently, 123 states are parties to the Rome Statute which gives the ICC a broad swathe of responsibility and authority in addressing violations. The ICC’s broad swathe tends to clash with foreign actions of outside states, specifically the U.S.

During the ICC’s inception, President Clinton had the U.S. be a founding signatory to reflect the U.S. support of punishing human rights violations. However, under the Bush Administration, the U.S. revoked its signature and stood opposed to the ICC. The Obama Administration took a different approach and strengthened US-ICC relations by assisting in the Darfur case and encouraging other states to assist ICC investigations. The Trump Administration did not continue the Obama Administration’s relationship with the ICC and has remained against it.

The U.S. relationship with the ICC is complicated. The central issue that the U.S. has with the ICC is its ability to supersede domestic court systems through complementarity. Complementarity in essence is a failsafe. Parties to the Rome Statute have an obligation to investigate individuals for human rights violations, and if they can be connected to them, the state must deliver the appropriate punishment. However, Article 17 of the Rome Statute prevents complementarity in four scenarios: 1) national authorities who have jurisdiction are investigating or prosecuting the case; 2) national authorities have investigated the case and chose to not to investigate further; 3) the case has already been tried by a national court; or 4) the case does not have sufficient gravity to justify further action by the ICC. Article 17(1)(b) presents a caveat allowing for ICC to investigate if it perceives that the state’s decision “resulted from the unwillingness or inability of the State genuinely to prosecute.” Therefore, the ICC can supersede any of its members’ legal systems if it feels justice was not delivered to its standards.

The scope of the ICC’s reach is not limited to just its members. The ICC itself can exercise its jurisdiction in a situation that occurred on or before July 1, 2002, when: “the crimes were committed by a State Party national, or in the territory of a State Party, or in a state that has accepted the jurisdiction of the Court.” The parameters for the ICC’s jurisdiction are malleable. Under the theory of universal jurisdiction, the ICC may prosecute any individual that commits a human rights violation because the collective agreement that these forms of violations should be punished if committed. However, Art. 12 of the Rome Statute lays out necessary preconditions that must be satisfied before the ICC can act. This includes the consent of the of the State on whose territory the crime occurred or the State of nationality of the accused individual.

The U.S. recognized that the ICC’s sweeping jurisdiction might clash with its international involvement. The U.S. found its panacea to this potential issue in Article 98 of the Rome statute. Article 98 states that the ICC may not require its member states to surrender members of non-party states if the request to surrender will force the member state to act inconsistently with its obligations under international law. To prevent forfeiture of its members to the ICC, the U.S. began to use Article 98(2) (98 agreements) of the Rome Statute to create distance between itself and the Court. The U.S. currently has more than 100 98 agreements with foreign states around the globe

This is where the US got ensnared. Afghanistan is a founding party to the Rome Statute, and the torture report from the Senate Select Committee revealed that CIA officers and military members conducted torture activities at black sites between 2003-2006. Under the Obama Administration, the U.S. Dept. of Justice investigated and its Attorney General decided not to press charges. In 2017, The ICC prosecutor used this as an opportunity to request authorization from the Pre-Trial Judges to initiate an investigation into activities in Afghanistan from 2003-2006. The Pre-Trial Court rejected the investigation for a number of reasons, but primarily for fact that an investigation at this stage would not serve the interests of justice. Although National Security Advisor Bolton used this as a platform to reassert the U.S. position, this problem would not be over.

Where We Are Today:

The ICC Prosecutor, Fentou Bensouda, is tenacious. After the initial rejection in 2017 to her request for an investigation, she appealed again. The U.S. drummed the same tune stating that the ICC had no capability to try its people before its court. That its bilateral treaties and agreements prevented access. That the ICC wasn’t seeking to prosecute its people; rather, it had an agenda to gain access and disrupt U.S. foreign relation activities.

Recently, on March 5, 2020, the ICC gave the green light for the Prosecutor to go after the U.S. after it granted its appeal. The ICC appellate court stated that the Prosecutor in her initial appeal had proffered enough evidence to meet the reasonable factual basis standard and the Appellate Court authorized the opening itself expediting the process.

The U.S.’s response to this new development was different than that of the past. Using more than fiery rhetoric, the Trump Administration took a further step in creating an EO under the auspices of the International Emergency Economic Powers Act (50 U.S.C. 1701) (IEEPA) and other authorities. The point of this EO is to secure U.S. sovereignty and the U.S. justice system from an investigation from a transnational court. Through this EO, ICC members, their families, or other individuals associated with this organization are barred from accessing the U.S. unless Secretary Pompeo gives permission. Additionally, any form of property, funds, or things associated with the ICC are to be blocked, prevented from sale, and transference. This creates issues not only on the individual member but fractures U.S. relationships with the international community.

The U.S.’s recent actions against the ICC undermine its support of transnational courts. Since the Nuremberg and Tokyo War Trials following WWII, the U.S. has been a leading proponent in establishing transnational courts. The U.S. stalwartly supported the founding of the International Criminal Tribunals for Rwanda, and Yugoslavia and helped where it could in bringing to justice those that committed human rights violations. However, now that the U.S. is being investigated for allegations its support for the legal basis of universal jurisdiction has dried up. The U.S. stance seems contradictory to the international community because it supports universal jurisdiction yet claims it can’t be held accountable under it. The basis for it is that the U.S. signed a 98 agreement with Afghanistan and that the U.S. is not a party to the Rome Statute. Therefore, regardless that the U.S. actions took place within an ICC member state’s territory, the treaty allegedly prevents Afghanistan from turning U.S. members over. Article 98 wasn’t designed to give states immunity from ICC prosecution. This is bolstered by the fact that Article 27 says the Rome Statute applies to all persons equally and that “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.” Regardless that a 98 agreement exists between the U.S. and Afghanistan, the agreement alone can’t shield the U.S. from an investigation.

Human rights violations and war crimes are some of the gravest actions a state can commit. States should be held accountable for their actions if law is to have weight and act as a deterrent for would be future violators. Under the Rome Statute, complementarity helps ensure this commitment through its mechanism of checking states that fail to or inadequately investigate/prosecute alleged violators. The U.S. unsubscribed specifically because of this. It felt like it could police itself, but in the end who polices the police? Without formal oversight that is apolitical any state would find it difficult to investigate, prosecute, and publicly highlight that it committed war crimes or human rights violations. The ICC has chosen to push the investigation because it perceives that the U.S. has failed to police its members. This action highlights the ICC’s mandate of effectuating international law to bring human rights violations and war crimes to the light and have them face justice.

Conclusion

The U.S. won’t accept this form of oversight. The U.S. may not accept it, but the ICC Prosecutor is still moving forward with the investigation. This will raise uncomfortable situations as the Prosecutor and ICC officials will seek to address U.S. agencies and military service members for their involvement in Afghanistan between 2003 and 2006. With the U.S. preventing access the Prosecutor’s job has been seriously undermined. It leaves one to wonder how it can go forward if she and her team cannot interview core individuals, review internal documents, or visit the U.S.

The full extent of international ramifications for the U.S.’s prevention of ICC access has yet to be seen. Important questions will need to be answered. Will the U.S. be permitted to lead transnational tribunals or have say in how they direct investigations? Will the U.S. be disinvited from human rights summits? Will the U.S. be removed from international human rights organizations? While those are conjectures – what is known is that the U.S. has severely fractured its relationship with the ICC. Only time will tell in how the world reacts to this stance, and while the world deliberates justice for those effected waits.

Disclaimer: The views and opinions expressed in this article are solely the author’s personal views. The views expressed in this article do not have any connection to any government entity nor do they represent the official views of the U.S. Air Force (USAF), USAF Judge Advocate General Corps, U.S. Department of Defense, or any other U.S. government agency.

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