While Pursuing International Justice at the ICC, the US and UK Must Ensure Justice at Home

[Chuka Arinze-Onyia is Amnesty International’s International Justice in Africa Fellow and writes about the need for both the US and UK to ensure accountability for their citizens who commit crimes under international law.]

On 12 July 2022, the BBC revealed that the United Kingdom’s Special Forces were involved in repeated killings of  unarmed men in Afghanistan. The report joins many other reports of crimes committed by UK forces in Afghanistan and yet there have been no successful prosecutions in the UK. Predictably, this report led to calls by organisations including Amnesty International, for  the UK  to conduct “an effective and transparent investigation into the allegations made against the UK Special forces in Afghanistan, that delivers justice for victims and holds the perpetrators accountable.” Also, predictably, nothing has happened.

These new allegations against the UK Special forces come at a time when there are renewed and invigorated commitments to international justice. Just recently, the call by the Prosecutor of the International Criminal Court (ICC) for additional funding for the situation in Ukraine  was met with an overwhelmingly positive response from Western states, some of which made voluntary financial contributions and seconded national experts  to support the work  of the court..  

In keeping with the renewed support for the ICC, both the United Kingdom and the United States have recently expressed support for the Court. However, there is an equally pertinent need for  these two  states to address questions of  impunity arising from their failure to hold  their nationals accountable in  their  domestic systems.

Since the early years of the Court, the US has been one of its greatest adversaries. Famously “unsigning” the Rome Statute, and subsequently placing sanctions on the court which were only recently lifted , the US has blatantly shown derision for the court.

US pressure on the Court may have contributed to the prosecutor’s decision to deprioritise aspects of the Afghanistan situation dealing with crimes under international law committed by US forces in Afghanistan, though the prosecutor cited its limited resources as the primary reason for that decision. This comes against the background of the outright refusal by the US to hold its citizens to account for crimes under international law, including torture, committed with the approval, and in some cases under the authority, of the most senior civilian authorities in the country.  

The UK on its own part has generally supported the Court. Unlike the US, the UK ratified the Rome Statute and remains one of the largest financial contributors of the Court. However, when the Office of the Prosecutor (OTP) commenced preliminary examination of the Iraq/UK situation, the UK relentlessly campaigned against the Court’s involvement and called for the preliminary examination to be concluded. The UK also called for time limits for preliminary examinations, apparently as a way to pressurise the OTP to close the Iraq investigation. The UK has also joined other major funders to restrict the resources available to the ICC, especially the Office of the Prosecutor, and coincidentally it was the lack of resources that the Prosecutor cited in his decision not to prioritise investigations into crimes committed by Afghan forces and their international allies.  

The Prosecutor eventually concluded the preliminary examination into the Iraq/UK situation and decided not to proceed with an investigation, despite finding that British military had committed crimes under international law in Iraq. Most worryingly, the OTP upheld the sufficiency of the clearly inadequate investigations launched by UK authorities which led to no accountability. This meant that victims of these crimes are denied justice both at the domestic and the international level, setting a standard that will be used to deny victims justice in many other situations before the court.

Despite clear opposition to the Court’s activities when their nationals are involved, both the US and UK have recently expressed support for the ICC since the prosecutor announced that he was opening an investigation of the situation in Ukraine. The UK pledged  military and police personnel as well as an additional 1 million, to support the court and the US passed a senate resolution expressing support for the Court and urging other states to do the same.

Though both states have wielded their considerable political and economic might to secure impunity for their nationals and military both at the ICC and in their domestic system, they have championed international justice for other countries. For instance, as members of the UN Security Council, both countries voted in favour of referring the situation in Libya to  the Court.  And while the UK voted in favour of referring the situation in Sudan to the ICC, the US did not vote against the resolution or use its veto power, choosing instead  to abstain.  Clearly, in situations where they are not the subject of the Court’s investigation, both countries have found some utility in the activities of the Court.

If global international justice is to become a reality, then the UK and US must take appropriate and legitimate steps to investigate and prosecute their nationals in their domestic courts. Both states clearly have the capacity to do so,  but neither appear to have the political will to hold those responsible for Rome statute crimes to account. Failing in their domestic obligation to ensure accountability, they must cooperate with the Court’s investigation of their nationals when they commit crimes under international law.

The ICC on its part must recognize when genuine national proceedings have taken place, like in the Nigerian situation where the ICC was able to see through sham domestic proceedings to decide that an investigation ought to be commenced. However, in the Iraq/UK situation, the ICC accepted the UK’s domestic proceedings despite the fact that no military personnel accused of crimes under international law was prosecuted.

The US should also ratify the Rome statute. It is problematic that the US can refer cases to the Court as a member of the United Nations Security Council and transfer two wanted persons (Ongwen and Ntaganda) to the court for prosecution, while at the same time insulating its nationals from investigations and prosecutions by the Court. There is absolutely no harm for any state that ratifies the Rome statute unless the state does not intend to investigate and prosecute its nationals when they commit Rome statute crimes. The ICC as a court of last resort will not investigate nationals of a state party unless the domestic system is either unwilling or unable to do so. If and only if the US fulfils its primary obligation to investigate and prosecute its nationals who commit crimes under international law in Afghanistan, the ICC may not have cause to investigate US citizens.

Finally, the ICC must develop a backbone in dealing with powerful countries like the US and UK. The OTP stretched the doctrine of complementarity to its very limits, when it decided that the domestic processes in the UK which led to zero prosecutions, were sufficient to avert an investigation by the court. Similarly, the Court’s decision to “deprioritise” the investigation of the US activities in Afghanistan is a  “selective justice strategy… couched in the language of prioritisation”. The court must be willing to go after nationals of powerful countries in the same way it goes after nationals of countries from the global south.

The revelations that UK Special Forces committed crimes under international law with impunity in Afghanistan presents  the UK with an opportunity to show itself to be a true champion of international justice. The UK must now conduct effective and legitimate investigations. And failing that, it must not obstruct an investigation by the Court, should the prosecutor decide to conduct one.

Global international justice will not be attained if the Court is seen to cower before western powers, while it willingly investigates other countries. The OTP should therefore reconsider its decision to deprioritise the investigation of crimes under international law committed by US forces in Afghanistan, and it must also reassess its decision not to investigate crimes under international law committed by British Forces in Iraq. But the priority must be for both the UK and US to conduct transparent, effective and legitimate investigations using their domestic process. Only in this way can justice be assured for victims of crimes under international law.