Emerging Voices: The Preliminary Examinations in Iraq: A Net Loss for the ICC’s Political Capital

[David Benger is the Course Assistant for the Brandeis University in The Hague intensive summer school in International Criminal Law. He may be reached at dabenger [at] gmail [dot] com.]

The International Criminal Court, an ostensibly purely legal organization, is nevertheless plagued by a wide variety of political pressures. For example, the attempt to balance The Court’s relationship with The African Union (widely considered to be deteriorating) and its relationship with the United States (widely considered to be improving) is an important thorn in the side of the Court’s daily operations. This post will examine the re-opening of the preliminary examination of British soldiers in Iraq through the lens of the potential political fallout of that decision. The re-opening of the preliminary examination in Iraq is not a signal of sufficient substance to appease the African anti-ICC lobby. Unless and until there are actual trials of European commanders in The Hague (not likely in the near future), the characterization of the ICC by African leaders as a neo-imperialist Western tool is not likely to dissipate based on a mere preliminary examination. With regard to the United States, however, the impact of this decision will almost certainly resonate. Though many observers of the USA-ICC relationship subscribe to the narrative of a steadily improving rapport between the two, this post will argue that this is not quite the case. In fact, the relationship between the Court and the USA is in a decidedly precarious position, and the re-opened Iraq investigation may have a decisive and damning impact on America’s potential support for The Court.

Throughout history, the United States has championed international law for the purpose of bringing human rights violators to justice. The USA was the driving force behind the establishment of the Nuremberg and Tokyo tribunals after World War II, and more recently, Yugoslav and Rwanda tribunals in the early 1990’s. In 1998, however, on the eve of the creation of the International Criminal Court, the United States stood in stark opposition. President Clinton signed the Rome Statute, but urged his successor not to support ratification until key issues of concern to the Unites States were addressed. The early Bush years signaled a worsening of relations between the United States and the ICC, including the American Service Members Protection Act, Bilateral Immunity Agreements, and the symbolic withdrawal of the American signature of the Rome Statute. Many have argued that the Obama administration has presided over a thaw in relations between the United States and the ICC, but this post will attempt to challenge that notion. Though the fear of a rogue anti-Western Prosecutor targeting American military personnel has largely dissipated, the Obama administration’s actions speak louder than its words. This post argues that President Obama’s public reference to old bilateral immunity agreements, Samantha Power’s calls for an independent Syria tribunal, and Harold Koh’s frustration with the Court’s inefficiency have heralded a new age of American opposition to the Court. This new stage is quite apart from the phantom concerns of the past, but all too concrete in its frustration with the ICC.

The Bush administration’s second term in office is widely recognized as an important turning point in America’s relationship with the ICC. In particular, the UN Security Council (UNSC) referral of the Situation in Darfur to the ICC in 2005 appeared to signal a lessening of American resistance to the Court. Though the United States did not vote in favor of the resolution, it abstained from using its veto. In 2011, the Obama administration went further and cast a vote in favor of the UNSC referral of the Libya situation to the ICC in 2011. The Obama administration has been credited with a broadly defined “thaw” in relations with the ICC. In 2013, Ambassador Stephen Rapp announced the expansion of the State Department’s War Crimes Rewards Program, which offers financial rewards for information leading to the arrest of suspects sought by the ICC (and especially leaders of the Joseph Kony’s Lord Resistance Army). At first glance, these seem to be rather weighty indicators of the evolution of America’s relationship with the Court. The handover of alleged Congolese warlord Bosco Ntaganda from the American Embassy in Rwanda to the custody of the ICC further supports the notion of the ‘Obama thaw.’ Closer examination, however, shows that the relationship is not improving at all.

Though the appointment of Samantha Power as the United States Ambassador to the United Nations caused the hearts of ICC supporters to flutter with optimism, her tenure has been largely dominated by politicking and rhetoric. Power’s support for the French proposal for a UNSC referral of Syria to the ICC came to little too late, and only after it was clear that Russia and China would almost certainly veto such a proposal. Her official actions in support of ICC actions have been supplemented with heavy handed reservations against any Court actions that could target American nationals (see for example, UNSC Resolution 1970 (2011): “nationals… from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State”). Even before her appointment to the Obama administration, she heralded the ICC as largely an instrument of positive complementarity, (ie not applicable to the United States, rather than a safeguard against impunity, which may be of greater concern to Americans).

In fact, two of the most flagrant demonstrations of the Bush administration’s resistance to the Court remain in force with no sign of disappearing. First, the Article 98 Bilateral Immunity Agreements, which strong-armed many States Parties to the Rome Statute into swearing they would never cooperate with the Court if it were investigating Americans, are not only still in force, but still very much relied upon. Though in point of fact, The United States did not have an Article 98 agreement with Mali, President Obama cavalierly implied that such an agreement did exist and that American soldiers participating in the UN Stabilization Mission in Mali had nothing to fear from the Court. Mark Kersten has argued that President Obama may have been referring to a provision in the Status of Forces Agreement, but ultimately the message projected was that Mali would not dare use its position as a member of the Court to assist in the investigation of American troops. Second, the American Service Members Protection Act (also known as The Hague Invasion Act) is only whispered about in hushed tones by friends of the ICC, who remember it as the most arrogant American repudiation of the Court’s ideals. This piece of legislation threatens an American invasion of the Netherlands if the Court were to attempt to prosecute an American national. Moreover, it ties the hands of American officials. Under the law of the land, Americans cannot assist with ICC investigations in any official capacity.

The United States has done little to promote the ICC as a tool of deterrence and punishment for mass atrocities. The Obama administration’s statements regarding Syria (i.e. drawing a “red line” to deter the use of chemical weapons) has largely drawn on the rhetoric of humanitarian intervention, or Responsibility to Protect, rather than supporting legal methods to adjudicate breaches of international law. This language of threats was revisited when President Obama attempted to make an impact on Russia’s invasion of eastern Ukraine. While even Putin has been credited with using the language of international law to justify his invasion of a sovereign nation (albeit disingenuously), the Obama administration has eschewed invoking the ICC in its list of potential solutions to the Russian invasion of Crimea and Eastern Ukraine. Even after The Ukraine declared an acceptance of ICC jurisdiction under Article 12.3 of The Rome Statute, the White House responded with silence.

Recent developments at the ICC have not served to placate American concerns. Though the ICC has tried its best to promote the re-opening of the preliminary investigation in Iraq as a gentle nudge via positive complementarity to encourage the British armed forces to expedite their investigations and prosecutions of British officers, even such a gentle nudge may prove ruinous. When coupled with the ongoing examination in the situation of Comorros which may result in arrest warrants for Israeli nationals, the future of the USA-ICC partnership looks bleak indeed. At a time when the ICC is riddled with criticisms regarding the efficiency of its trials, the selections of situations and cases, and the quagmire that the cases in the Kenya situation have become, Ms. Bensouda may have bitten off just a bit too much. Already, British officials have issued fervent guarantees that no English troops will be on the docket at the ICC. It is only a matter of time before American skeptics raise the alarm and make the point that this kind of “prosecutorial irresponsibility” is the reason why the United States must not and will not join The Court.