President Trump’s national security adviser, Ambassador John Bolton recently threatened sanctions against the International Criminal Court, claiming that the institution was “ineffective, unaccountable, and indeed, outright dangerous.” His comments came in response to the ICC’s preliminary examination into alleged war crimes and crimes against humanity in Afghanistan since 2003, including the possibility of crimes committed by the C.I.A. and U.S. military forces. Bolton argued that the ICC “unacceptably threatens American sovereignty and U.S. national security interests.”
Ambassador Bolton misconstrues the ICC’s objectives and abilities. In fact, the ICC has the potential to promote human rights and the rule of law around the globe, something the U.S. should see as in its interests.{mosads}
First, the ICC is a long way off from indicting U.S. soldiers. Individuals can only be brought before the ICC if they are nationals of a state party to the Rome Statute (the treaty that created the ICC), or their alleged conduct occurred on the territory of a state party. Assuming this precondition is met, the Rome Statute designates three options for the ICC to exercise jurisdiction: When a State Party refers a situation to the prosecutor involving crimes committed within their territory; when a situation is referred to the prosecutor by the U.N. Security Council; or when a situation is initiated by the prosecutor herself. In November 2017, the prosecutor of the ICC, Fatou Bensouda, announced that they would be opening an investigation into alleged crimes in Afghanistan proprio motu, or under her own authority.
The U.S. formally withdrew its signature from the Rome Statute in 2002 and thus it is not a state party. Bolton suggests that the ICC claims “automatic jurisdiction” over individuals who are nationals of non-state parties. There is no such thing as automatic jurisdiction over individuals at the ICC, only jurisdiction based on territory or nationality, and only under limited circumstances. Foreign nationals are subject to domestic criminal prosecutions when they commit crimes within another jurisdiction, and the ICC can only exercise jurisdiction where domestic courts are unwilling or unable to do so.
Afghanistan is a state party to the Rome Statute, meaning the precondition for the exercise of jurisdiction has been met. But there are several further checks on the ICC’s power. A proprio motu investigation must be authorized by ICC judges. The Prosecutor can only initiate a formal investigation and request arrest warrants if the Pre-Trial Chamber at the ICC determines that there is a reasonable basis to proceed.
Additionally, the United States and Afghanistan have an Article 98 treaty agreement, which includes a provision prohibiting Afghanistan from surrendering U.S. personnel to the ICC. Finally, because the ICC operates under a complementarity principle, the U.S. government could avoid the ICC investigation altogether by initiating its own investigation into alleged crimes committed by U.S. nationals.
Second, Bolton claims that “the largely unspoken, but always central, aim of [the ICC’s] most vigorous supporters was to constrain the United States.” This is also patently false. The preamble of the Rome Statute acknowledges the millions of victims of mass atrocities during the 20th century, and recognizes that “such grave crimes threaten the peace, security, and well-being of the world.” In particular, the ICC was created in the wake of atrocities in Rwanda and in the former Yugoslavia during the 1990s. The aim of the ICC was to ensure an end to impunity for mass atrocities, not to interfere with the internal affairs of any state, and there is a clear preference for domestic prosecutions of mass atrocities whenever possible.
What is this dust up all about? In reality, the ICC is getting the most criticism now over the overwhelming number of investigations and prosecutions that have been directed at Africa. This scrutiny has threatened public perception of the institution, and the Office of the Prosecutor has worked hard to counter charges of bias by broadening the geographical reach of their investigations. The preliminary examination in Afghanistan is part of that expansion, and not only aimed at the U.S.
While there are reasonable worries that the ICC will never be able to fairly distribute investigations and prosecutions among individuals from developed and developing countries, Bolton’s claim that the U.S. is in danger of being improperly targeted is unfounded and unhelpful in a world that needs the ICC.
Shannon Fyfe is assistant professor of philosophy and a fellow of the Institute for Philosophy and Public Policy at George Mason University. A lawyer, working on issues of ethics in international criminal law, she is a former legal intern for the Office of the Prosecutor at the International Criminal Tribunal for Rwanda.