The United States Continues its Attacks against the International Criminal Court

[Jennifer Trahan is a Clinical Professor at the NYU Center for Global Affairs and Megan Fairlie is a Professor of Law at Florida International University School of Law.]

On March 15, 2019, U.S. Secretary of State Michael R. Pompeo announced plans to implement a travel ban against International Criminal Court (“ICC”) officials working on the Afghanistan situation. The ban specifically will revoke visas from ICC personnel and staff who are “directly responsible for any ICC investigation of U.S. personnel.” This includes persons who “take or have taken action to request or further such an investigation.” Secretary Pompeo suggested that the ban could also cover those who work on the Israel/Palestine situation, and that the administration is “prepared to take additional steps, including economic sanctions if the ICC does not change its course.”

It is worth emphasizing that the International Criminal Court is a court designed only to try the gravest crimes of concern to the international community—including genocide, crimes against humanity and war crimes. It is also worth remembering that part of the ICC’s Afghanistan preliminary examination also covers horrific atrocity crimes by the Taliban and affiliated groups (including crimes against humanity and war crimes committed through “intimidation, targeted killings and abductions of civilians”), as well as alleged crimes by the Afghan Armed Forces. Among other regrettable outcomes, it is conceivable that U.S. efforts to insulate U.S. nationals from exposure could inadvertently assist impunity for crimes by the Taliban by potentially hindering the whole Afghanistan inquiry.

Other costs are sure to follow the U.S. rebuke of a judicial institution supported by all major U.S. allies. The current maneuvering is both a repudiation of multilateral engagement and a repudiation of the rule of law. Specifically, Secretary Pompeo’s statements were not accompanied by any commitment to investigate and/or prosecute the crimes alleged to have been committed by U.S. nationals (members of the U.S. armed forced and members of the CIA) in Afghanistan—even though some of the crimes have been well-documented by the United States Senate Select Committee on Intelligence.

Notably, the U.S.-ICC showdown could be avoided if the United States prosecuted these cases itself. Under the ICC’s complementarity regime, any state that is “willing and able” to prosecute crimes under examination by the ICC renders them “inadmissible” before the ICC. Thus, if the United States were to investigate or prosecute the crimes at issue by U.S. nationals in Afghanistan—which it should have every interest in doing to ensure that U.S. federal laws and military laws prohibiting torture were not violated, then the cases become “inadmissible” before the ICC. If Pompeo’s pledge regarding America’s “enduring commitment to the rule of law, accountability, and justice” has meaning, the United States should have no impediment to committing itself to prosecuting these cases.

In analogous circumstances, when the ICC opened a Preliminary Examination into the conduct of UK forces In Iraq (including torture), the UK chose this path, and has conducted investigations into such crimes. If the UK successfully investigates and/or prosecutes these cases, the ICC will not proceed against its nationals. It is unclear why the U.S. cannot follow the UK’s lead.

While Pompeo’s statement reaffirmed U.S. support for “international [and] hybrid legal mechanisms”—and that support is welcome—it points out the hypocrisy even more dramatically. The U.S. will support international justice (prosecutions of genocide, crimes against humanity and/or war crimes) as long as those prosecuted are not U.S. nationals. Indeed, the U.S. has provided substantial (and important) assistance to prosecutions in situations, such as the former Yugoslavia, Rwanda, Cambodia and Sierra Leone. In addition, Pompeo cites U.S. support for “evidence collection efforts in both Syria and Burma.”

Because there are legislative restrictions that could impede any ICC cases against U.S. nationals from being successfully pursued (for example, under the so-called American Service members’ Protection Act (“ASPA”)), the whole current attack on the ICC seems somewhat superfluous. .Regardless, the optics of insisting that U.S. military and CIA are essentially “above the law” are very poor and do not in the long-run serve U.S. interests. They also set extremely troubling precedent for other countries all too eager to insulate the behavior of state officials from judicial scrutiny.

While the U.S. is not a party to the ICC’s Statute, the way jurisdiction works under that statute, is that it does cover the conduct of nationals of a non-State Party, such as the U.S., when U.S. nationals are implicated in crimes in the territory of an ICC State Party, such as Afghanistan. (The U.S. repeatedly makes statements to the contrary at the UN, but that argument is unlikely to prevail at the ICC.)

These heavy-handed tactics are reminiscent of ones employed under the Bush Administration, for example, denying military assistance to countries that did not enter into so-called “article 98” agreements (also known as Bilateral Immunity Agreements). When various countries refused to enter such agreements, they received military assistance instead from China. That is an extremely clear example that there can be costs to the U.S. in furthering a policy of exceptionalism.