The relationship between the United States and the International Criminal Court (ICC) has been a tumultuous one, characterized by wild swings. During the Clinton administration, the U.S. was a strong proponent of the establishment of the ICC and, under the leadership of Ambassador David Scheffer, participated actively in the negotiations leading to the adoption of the Rome Statute, the treaty establishing the Court. The Bush administration, in contrast, approached the ICC with hostility and adopted policies meant to marginalize and weaken it. The Obama administration “reset” relations with the ICC and sought pragmatically to identify areas for cooperation with the ICC on a case-by-case basis, where doing would so advance US interests. Particularly during its waning days, the Trump administration’s hostility towards the ICC exceeded even that of the Bush administration; Secretary of State Pompeo launched ad hominem attacks on the ICC, referring to it as a “kangaroo court,” and the administration imposed visa restrictions on the ICC Chief Prosecutor Fatou Bensouda and ultimately economic sanctions on her and a senior ICC staff member. As the Biden administration formulates its policies, it is timely to revisit the question of what the United States should do in its relationship with the ICC.
A strategic commitment, not case-by-case engagement
When I wrote on this question in the inaugural edition of the International Criminal Court Project’s Arguendo platform, I argued that the United States should focus less on a tactical and case-by-case approach to its relationship with the ICC. Instead, I argued for a more strategic view that would assign greater weight in US policy calculations to the long-term US interest in promoting compliance with international humanitarian law and ending impunity for atrocities. That remains my view today. As part of its rapprochement with the Court, the Obama administration indicated it would support ICC investigations into serious violations of international humanitarian law on a case-by-case basis, a view that has been echoed by the Biden administration. This ad hoc approach, however, is inconsistent with the strategic commitment and neutrality that should underlie American efforts to promote accountability and the rule of law. If the US supports the ICC only with respect to some cases, but not others, it raises obvious question about the politicization of international criminal law. A case-by-case approach suggests our interest in the ICC’s work might be informed by political expedience rather than our stated commitment to international justice and accountability.
Unlike most international organizations, where it makes perfect sense for the United States to advocate for particular policies to advance American foreign policy interest, the ICC is a judicial body. Affirming the international rule of law means supporting the Court institutionally even if US policy makers do not agree with every particular decision or legal ruling it makes. Having served in the State Department for over a decade, I am not so naïve as to believe that our interest in promoting international justice will never come into conflict with competing policy interests. But the United States should articulate and emphasize a general policy of supporting the ICC, not a case-by-case approach, as a manifestation of our commitment to international justice and accountability for atrocities.
The Afghanistan elephant in the room
One of the major obstacles to a more whole-hearted embrace of the ICC, as noted in the outstanding report by the American Society of International Law’s Task Force on Policy Options for U.S. Engagement with the ICC co-chaired by Todd Buchwald and Beth Van Schaack (“ASIL Task Force”), is the ICC’s investigation into the situation in Afghanistan, which potentially covers mistreatment of detainees by US government personnel. Despite the schizophrenia in US policy towards the ICC over the past 25 years, opposition to any ICC investigation, much less prosecution, of US personnel is a position that has commanded bipartisan support. Yet the intensity of the anxiety caused by the prospect of an ICC investigation into US actions in Afghanistan is difficult to understand or explain. Although former Legal Adviser John Bellinger may overstate the case a bit when he suggests that there is “there is no possibility that any U.S. official will ever be arrested and prosecuted in the Hague” for events in Afghanistan, he does not overstate that case by much. We expose US military personnel to extraordinary risk by deploying them in combat operations in support of American foreign policy interests. Given the American foreign policy interest in promoting international justice and accountability, the sensitivity the US has demonstrated regarding the negligible legal risk to those personnel of investigations into serious alleged misdeeds seems exaggerated.
Moreover, the most effective way to minimize the risk of an indictment of US personnel is not to shun the ICC because of its investigation into Afghanistan, but rather to engage with the Court on the matter. I encountered similar impulses among some US officials to refuse to cooperate with an international criminal court when I served as the Legal Counselor at the US Embassy in The Hague at a time when the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) initiated a review of alleged US war crimes during the 1999 Kosovo bombing campaign. Rather than giving rise to cause for animosity towards the tribunal, this situation presented a legal challenge to be managed, just as skilled US government lawyers manage the legal dimensions of other foreign policy challenges. In the end, the ICTY Prosecutor did not pursue any criminal cases against US officials with respect to the Kosovo campaign. The ASIL Task Force has identified a number of arguments the US government could deploy, and additional information about the investigations and prosecutions that were conducted by US authorities into allegations of torture or other mistreatment in Afghanistan, to persuade the ICC Prosecutor that the Court should not indict US citizens under the principle of complementarity. The recommendations advanced by the Task Force are much more likely in due course to bring the ICC’s investigation of US personnel in Afghanistan to a quiet conclusion than are frequently rehearsed but legally suspect assertions that the ICC may not exercise jurisdiction over the nationals of non-party states, even for acts that take place on the territory of an ICC state party.
It is difficult to imagine that any US government official would want to see US government officials prosecuted by the ICC for US actions in Afghanistan. Polling data suggests that the American public, in contrast, holds surprisingly nuanced views on the matter. In any case, it is important to remember that the ICC’s investigation concerns actions by US personnel amounting to torture and cruel, inhuman, or degrading treatment, actions that are prohibited by the Convention Against Torture and international humanitarian law norms (as well as US federal law) and that are offensive to American values. Our failure to hold the US government personnel criminally responsible for these actions, especially the Central Intelligence Agency’s program of “enhanced interrogation techniques,” is not consistent with America’s commitment to justice for atrocities and is not a position to be defended with pride.
In considering what relationship the US government should have with the ICC, it’s worth engaging in the thought exercise of imagining how events might have turned out different if the United States had become a party to the Rome Statute of the ICC prior to the 9/11 attacks. When CIA operators were devising their enhanced interrogation techniques, and Justice Department lawyers were providing their blessing for those techniques, would being a party to the Rome Statute have served as a check on the US government’s embrace of acts of torture and cruelty? Would those actors have been forced to confront the specious nature of some of the legal guidance proffered by the Office of the Legal Counsel, knowing that the conduct of US officials could be subjected to review by an international criminal court? This thought experiment highlights that the US government, instead of seeing the ICC as a threat to US military personnel, should welcome it as an institution that can strengthen the norm against torture and other international humanitarian law violations. It is a reminder of how embracing a strategic commitment to international justice and accountability – and not merely a case-by-case strategy driven by tactical considerations – would be good not only for America abroad, but also for America at home.