At Best, Some U.S. House and Senate Members Lack Even an Elementary Understanding of the International Criminal Court

[Jennifer Trahan is Clinical Professor, NYU Center for Global Affairs and Megan Fairlie is Professor of Law, Florida International University College of Law.]

This past week, certain members of the US House and Senate released two letters (here and (here) that demonstrate, at best, a woeful lack of comprehension of the International Criminal Court.  The letters suggest that the ICC’s preliminary examination regarding crimes in Israel/Palestine and its investigation regarding crimes in Afghanistan are politicized and baseless. Critically, these views rest on numerous, elementary misunderstandings about the Court—or are themselves an effort to misleadingly represent the institution.  The letters also, and troublingly, could be interpreted as encouraging Secretary of State Pompeo to renew his prior efforts to obstruct the work of the Court, which included threats towards Court officials and their families. 

ERROR 1:  The intimation that the ICC is attacking Israel and the United States. Both letters misleadingly suggest that it is Israel (Portman/Cardin Senate letter), or Israel and the United States (House letter) that are being attacked.  As ought to be well-known, the ICC does not prosecute States, but individuals—and only persons who are implicated in committing genocide, war crimes and/or crimes against humanity who have not been brought to justice elsewhere.  The ICC simply does not investigate or prosecute States.  

ERROR 2:  The claim that the ICC’s ruling regarding its jurisdiction over the situation in Palestine/Israel has implications regarding questions of “statehood.”  Both letters suggest that for the ICC to opine on issues related to Palestinian borders would jeopardize a potential Israeli/Palestinian peace process.  This dramatically overstates the role of the ICC.

The Court is not being asked to make – nor would it have the authority to make – a generalized decision as to statehood regarding Palestine/the Palestinian Territories.  The Court is not being asked to make – nor would it have the authority to make – a generalized determination as to how the UN should view the situation, for the simple reason that the ICC is an independent body, created by its States Parties, and not a UN institution.  And, whatever the Court rules will not have any implications regarding any future peace process, which has to occur independently.  Quite simply, the ICC has no power to rule on any of these broader questions, nor is being asked to do so, nor is it purporting to do so.  

The Prosecutor has made a request to Chambers to clarify whether she has jurisdiction to proceed regarding the situation of Israel/Palestine, and this remains an open question, having been briefed to the judges.  When the Pre-Trial Chamber rules (which ruling could presumably go up on appeal), the ruling will only be about ICC jurisdiction – i.e., the applicability of the Rome Statute’s jurisdictional provisions to the crimes in question.  Any ruling will have none of the profound consequences that both letters mistakenly suggest. 

ERROR 3:  The suggestion that the Court’s jurisdiction is limited to nationals of States Parties.  Both letters state that “[n]either the United States nor Israel are members [sic] of the ICC,” and thereby appear to question whether there could be jurisdiction over crimes by Israeli or US nationals.  

As U.S. legislators ought to know, the ICC operates on the principles of nationality and territoriality. The latter means that the Court has jurisdiction over conduct that occurs on the territory of an ICC State Party, regardless of whose nationals are involved.  Afghanistan is a State Party.  (Whether the same holds true for Palestine, and, if so, precisely where there is jurisdiction, is the issue that is awaiting decision (see above)). 

While the US may frequently state that the Court cannot exercise jurisdiction over nationals of non-party states (an erroneous statement repeated in the House letter), that is not how the Rome Statute, or basic principles of territorial jurisdiction, operate.  It is as basic as Italy’s authority to try Amanda Knox or France’s ability to try an American who commits murder in Paris.  Territorial jurisdiction was also the basis for the Sierra Leone Special Court’s prosecution — supported by the US — of former Liberian President Charles Taylor.

ERROR 4:  The claim that the ICC should not investigate because Israel and the US could do so themselves.  Both letters allege that domestic prosecution mechanisms preclude the need for ICC prosecutions.  For example, the Portman/ Cardin letter states:  “ICC rules prohibit it from prosecuting cases against a country that has a robust judicial system willing and able to prosecute war crimes of its personnel. Therefore, the ICC’s mandate should not supersede Israel’s robust judicial system, including its military justice system.” (emphasis added).  The House letter contains similar language claiming that Israel and the US “are both able and willing to carry out investigations and prosecute offenders.”

These assertions misstate the Rome Statute’s “complementarity” regime.  The ICC does not cede jurisdiction simply because a country “has a robust judicial system,” nor does the bald assertion that a state is “able and willing” to investigate or prosecute prevent the Court from acting. What is required is for the Court to step aside when states actually investigate and/or prosecute. 

If Israel were to investigate and/or prosecute the crimes under examination, that would divest the ICC of jurisdiction; the same would be true for the United States. As yet, however, neither state appears to be doing so.  In the US, for example, there have been almost no prosecutions related to its “enhanced interrogations” program.  If the US were to conduct such investigations and/or prosecutions in the future, the Court—as a complementary mechanism—would be required to stand aside. 

ERROR 5:  The claim that it is the ICC that is playing politics.  The ICC is a judicial institution with dedicated staff, including American nationals among its Prosecutors.  It has a roster of judges from around the globe, including from major US allies. There have been multiple acquittals and there are many procedural protections designed to ensure fair trials, as endorsed by the American Bar Association.  Earlier US concerns prompted a number of procedural checks and balances that were ultimately built into the Rome Statute, such as not permitting the Prosecutor to open an investigation on her own (proprio motu) authority, but requiring judicial approval.  

While all the charges of course will need to be thoroughly investigated and, if they proceed, prosecuted, suggesting the ICC is “politiciz[ed]” and subject to “misuse” as both letters do, ignores the strong preliminary indications that war crimes and/or crimes against humanity were committed in both situations.  The United Nations Independent Commission of Inquiry on the 2014 Gaza conflict documented serious allegations of wrongdoing by both Israeli forces and Palestinian armed groups, which it characterized as war crimes.   And, ironically, the US has itself affirmed that crimes were committed by US forces, as cataloged in the report of the US Senate Select Committee on Intelligence.  That report examines CIA crimes not only in Afghanistan but various “black site” “secret-prisons” in Poland, Romanian, and Lithuania (all ICC States Parties).  The Prosecutor has also received information suggesting similar crimes were committed by Afghan Armed Forces, and has reason to believe there was a massive number of crimes against humanity and war crimes committed by the Taliban and affiliated groups.

In light of the Court’s slow, methodical progress in both matters, it is in fact the letter-writers who are infusing politics into the judicial process by suggesting that credible allegations of war crimes and crimes against humanity should not even be investigated — at least with respect to US and Israeli nationals.  Tellingly, neither letter complains about prosecution of Palestinian or Afghan nationals.

This is a sad stance for a country that historically was a leader in the field of international justice, spearheading the war crimes prosecutions before the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East (Tokyo).  More recently, the US has been strongly supportive of the creation and work of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the Extraordinary Chambers in the Courts of Cambodia. 

The rule of law needs to be pursued by the kind of neutral institution, supported by its 123 UN Member States, that the ICC is.  The letter-writers are attempting to block the ICC’s judicial process, when in fact the US that should be a leading player in ensuring that genocide, crimes against humanity, and/or war crimes wherever committed are prosecuted.  

Calling on the US Secretary of State – who has threatened ICC staff and their families – to continue to obstruct the Court is dangerous.  Finally, and perhaps most troublingly, each letter calls for the Secretary of State to block the Court’s work:  the Israel investigation (the Portman/ Cardin letter) and the Israel and Afghanistan investigations (the House letter).  In so doing, the letters implicitly endorse Pompeo’s past tactics – which include threats against ICC Court staff and their families (discussed in Trahan’s prior post here).  This move is particularly troubling in light of the broader global landscape, which includes a recent Israeli report that threatens individual members of civil society by name.

Seemingly spurred on by these two letters, Pompeo has since threatened “there will be consequences” should the Court proceed regarding the situations of Israel/Palestine and Afghanistan.  Such threats need to be strongly and clearly denounced, as the NY City Bar Association has recently done.

Why the International Criminal Court, deserves America’s support.  The ICC is just one court with a considerable caseload, and one whose docket largely aligns with US interests.  This includes prosecuting the crimes in Darfur that the George W. Bush administration acknowledged to constitute genocide.  It also includes the prosecution of members of the so-called “Lord’s Resistance Army” for atrocities committed in Uganda, which led to US passage of the ‘‘Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009.’’  

This is a Court that deserves US support and engagement — as it had under the Obama Administration, which sent Special Operations Forces to track and arrest members of the Lord’s Resistance Army.  There was even some measure of support during the second term of the George W. Bush Administration, when the US acknowledged the crimes in Darfur to be genocide and tacitly supported the UN Security Council referring the situation to the ICC.  (See a recent statement by the Clinton, Obama, and one of the Bush Administration US War Crimes Ambassadors supporting the ICC, also signed by the 100-year-old last living Nuremberg Prosecutor, Benjamin Ferencz.) 

If all major US allies (other than Israel) can support the Court and its anti-impunity mandate —that genocide, crimes against humanity, and war crimes must be prosecuted — why can the US not at least avoid obstructionism and behave with an appropriate level of respect for this essential judicial institution?

Members of the US House and Senate should support international justice; yet, they cannot credibly do so only when it is politically expedient.