The ICC’s Afghanistan Investigation: What’s at Stake for the U.S.?

The United States faces a tough predicament: How best to navigate the recent decision of the International Criminal Court (ICC) Prosecutor to seek to commence an investigation in Afghanistan. With Pre-Trial chamber approval likely, the U.S. faces the prospect of an ICC investigation of U.S. conduct, including allegations of mistreatment and torture of detainees by U.S. forces and CIA personnel in Afghanistan, and on the territory of other ICC state parties after the 9/11 attacks, particularly in the 2003 to 2004 time period. For 10 years, the possibility that the ICC would move from a preliminary examination to a formal investigation loomed heavily over the evolving U.S. relationship with the ICC. But now that predicament is here, in a moment that is fraught with challenges for both the U.S. and the ICC, as well as for Afghanistan and for other U.S. allies who are parties to the ICC statute and thus have accepted obligations to cooperate with the Court.

We should all take a deep breath. For one thing, because the U.S. is not a party to the treaty that created the ICC (the Rome Statute), it is not legally obligated to cooperate in such an investigation, and indeed is restricted  by U.S. statute from doing so. Moreover, any investigation would likely take years; and an astute observer of the Court, Alex Whiting, has predicted that “even if the Prosecutor finds sufficient evidence to bring charges in Afghanistan, it’s very unlikely that any accused persons will ever get surrendered to the Court.” There is time for the U.S. to calmly assess how to navigate adroitly through this terrain with careful consideration of all that is at stake.

The clear policy of successive U.S. administrations, both Republican and Democratic, has been to protect U.S. personnel from exposure to the ICC’s exercise of jurisdiction. Thus, since Afghanistan became a party to the ICC treaty in 2003, and the Office of the Prosecutor (OTP) opened a preliminary examination in 2006, U.S. officials made their views known  in response to the prospect of a possible ICC investigation in Afghanistan that might include U.S. personnel. With an investigation now likely, U.S. government lawyers will want to focus on arguments that could carry persuasive traction. These may include arguments invoking the OTP’s Policy Papers on Case Selection and Prioritization and on Sexual and Gender- Based Crimes – and emphasizing that ongoing Taliban crimes warrant a priority focus, including Taliban attacks  directed against civilian populations and sexual and gender-based crimes directed against women and girls (see discussion here and here). Moreover, because the ICC is a court of last resort that is complementary to national justice proceedings – with genuine domestic processes as the first line of defense and of justice – the U.S. should also examine systematically and transparently both what it has done domestically in response to allegations of the mistreatment and torture of detainees after 9/11 and what more it can do credibly to advance accountability domestically

Indeed, as the U.S. government considers its response to the impending ICC investigation, now is an important time to clearly reaffirm an unwavering commitment to abide by U.S. treaty and statutory obligations against torture. Following a wrong turn after 9/11, the United States made a fundamental course correction to affirm its commitment against torture, making clear that “torture, and cruel, inhuman and degrading treatment and punishment are forbidden in all places, at all times, with no exceptions.” The mistreatment of detainees after 9/11 documented in the US Senate Select Committee on Intelligence Report (conduct opposed by military lawyers as well as many officials and leaders across the political spectrum) is a painful scar on the U.S. record. Both the Republican and Democratic candidates in the 2008 presidential election stood firm against torture. And decisive action by President Barack Obama, — and strong leadership by Sen. John McCain (R-Ariz.), a torture survivor during the Vietnam War, and others, to reinforce statutory prohibitions on torture — helped to reestablish and reaffirm the U.S. rejection of torture. Defense Secretary James Mattis likewise has made clear that he is strongly opposed to torture under any circumstances. But to securely cement this commitment, the current administration should explicitly affirm – as Mattis has done – that it unequivocally opposes torture and will abide by U.S. treaty and statutory obligations prohibiting torture. This is the right – and lawful – thing to do. It would also reinforce U.S. complementarity arguments that the U.S. system has self-corrected.

Also, as the U.S. government addresses immediate issues and challenges arising from an Afghanistan investigation, it is vital to keep in mind the deep U.S. interests and long term stakes in continuing to advance justice for mass atrocities. The one thing the United States should not do is to waver in its commitment to seek accountability for egregious international crimes such as the forced recruitment and use of child soldiers, or mass rape and other forms of sexual and gender-based violence, or the deliberate targeting of civilian populations. Bipartisan outrage over the Assad regime’s use of chemical weapons against innocent civilians in Syria and over widespread torture and murder in its prisons, documented by the Caesar photos; the deep outrage over ISIS’s brutal atrocities, including summary executions, sexual slavery, and genocide; and revulsion over widespread rape in too many conflicts around the world, has motivated Americans across the political spectrum to stand up and say this must stop.

In short, as the U.S. government navigates its current challenges with the ICC, it can and should do so in ways that support justice for horrific atrocity crimes – and does not undercut the developing architecture of accountability that includes national, hybrid, and international courts. Why? For three key reasons.

Seeking Justice for Atrocity Crimes Advances U.S. Interests and Values

First, the United States has a strong and long-standing stake in justice and accountability for mass atrocity crimes. American leadership was critical in establishing the Nuremberg and Tokyo tribunals after World War II, and in contributing to the development of international humanitarian law. American support was also vital in the post-Cold War period to create the International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR) to hold perpetrators of genocide, crimes against humanity, and war crimes to account. Over the last two decades, both Democratic and Republican administrations also have supported the creation of numerous hybrid or mixed courts that combine international and national judges and lawyers, and that are generally located in directly affected societies with potential for legal capacity-building in those societies. These include the Special Court for Sierra Leone, which brought Liberian President Charles Taylor to justice; the Cambodia tribunal, which has held Khmer Rouge leaders to account; and the joint African Union/Senegalese tribunal, which brought Chadian dictator Hissene Habre to justice, among others. The United States has also provided support to domestic processes such as the mobile courts in the Democratic Republic of the Congo that have brought to justice perpetrators of brutal rapes. The U.S. needs to continue to stand up for justice and accountability.

These efforts reaffirm the most fundamental norms of human conduct and of humanity. The prohibitions against mass atrocities reflect legal rules the United States has sought to advance on a bipartisan basis along with many other countries for decades, aiming to protect civilians from harm and to protect combatants from unnecessary suffering. Better enforcement not only brings some measure of justice to victims; it also helps to build a framework of accountability that, over time, can help to strengthen prospects for prevention of atrocity crimes.

There are also very pragmatic reasons why strengthening enforcement of this body of law is in U.S. interests and helps to advance international security. First, it contributes to conflict resolution. Atrocities often fuel an ongoing cycle of grievance, and conflicts flamed by such grievances can have profound security consequences, including desperate populations fleeing across borders and regional instability. This can put the U.S. and its partners in the difficult position of facing options, such as military intervention, which are far more costly than sustained efforts at earlier, structural prevention. And failure to seek credible measures of accountability can flame pressures for retributive violence, making prospects for rebuilding after conflict all the more difficult.

Another pragmatic issue has to do with coalition-building. American commitment to international humanitarian law aids in building effective coalitions with allies and partners, whose support is often critical for success, and it helps reinforce the legitimacy of military action. Compliance also bolsters the United States’ ability to credibly highlight the importance of these fundamental rules regarding treatment of civilians and combatants and to advocate for compliance with those rules by others.

Indeed, the U.S. often works with and through partners in foreign militaries, providing forms of support other than direct combat operations and thus has a strong stake in how those partners conduct themselves. If the United States is to help build professional and accountable partners, who are seen as protectors and not predators by their local populations, the law prohibiting atrocity crimes (and its meaningful enforcement) is a vital part of training and education that can reinforce discipline and help to prevent atrocities.

All of these reasons underscore why we should respond carefully and wisely to the prospect of an ICC investigation concerning Afghanistan. The U.S. can and should respond vigorously with the most persuasive legal arguments possible while, at the same time, not jeopardizing the entire system of accountability that has developed especially over the last quarter century – a system of which the ICC is a part.

Advancing Credible Domestic Action, Whenever Possible, is Squarely in the U.S. Comfort Zone

There’s a second reason why the U.S. can and should navigate the current situation in ways that do not undercut our commitment to justice and accountability, or undermine the emerging accountability architecture. The ICC, despite its limitations and challenges, is based fundamentally on the principle of complementarity and the primacy of national accountability processes – an idea the U.S. strongly supports. Deliberately designed to be a court of last resort, with domestic authorities having primary responsibility, the ICC’s complementarity principle encourages justice to be pursued nationally in directly affected communities, reinforcing efforts to build genuine domestic justice processes, hopefully in the process strengthening domestic rule of law capacity as the first line of defense against atrocities.

U.S. negotiators pressed for the principle of complementarity to be adopted during the Rome negotiations. Even at the height of U.S. antagonism toward the ICC, when the U.S. “unsigned” the Rome treaty early in the George W. Bush administration, U.S. officials affirmed strong U.S. support for domestic justice processes, including domestically based hybrid mechanisms that include international participation. Subsequently both the Bush and Obama administrations provided significant assistance to a wide range of domestic and hybrid accountability processes to investigate and prosecute atrocity crimes.

But what if reliance on domestic action in conflict-ridden societies is not possible or sufficient? In many such cases, both Republican and Democratic administrations have looked to the ICC and found the Court’s involvement to be consonant with U.S. interests. The Bush administration decided that the Court had an important role to play in seeking justice for atrocities in Darfur, Sudan, which resulted in a UN Security Council referral and cautious, selective engagement with the Court. The Obama administration decided to constructively, pragmatically engage with the ICC, on a case by case basis, consistent with U.S. interests and law; it supported the UN Security Council referral of the situation in Libya to the ICC; and assisted in turning over major ICC indictees, including Congolese warlord Bosco Ntaganda, and Ugandan Lord’s Resistance Army Leader Dominique Ongwen.

In short, on a number of occasions, the United States has concluded, together with other states, that the ICC offered the best or even the only realistic option for accountability and justice for victims. And in responding effectively to any potential OTP investigation in Afghanistan, we should take care to avoid undercutting the ICC’s work in situations where we have supported ICC action in the past.

Furthermore, in working to protect U.S. interests and personnel, engaging adroitly is likely to be a more effective strategy than overt hostility or disengagement. The Obama administration worked hard diplomatically to advance U.S. equities at the Kampala negotiations over the crime of aggression, with the result that non-parties to the ICC treaty are not subject to the crime of aggression. At the Assembly of States Parties (ASP) in December in New York, ICC member states may decide to activate the crime of aggression, and the United States has long-standing interests in how and whether any such step is taken and regarding a number of unresolved issues. So the U.S. should continue to stay engaged and not lose the ability to exert influence on this and other issues that may arise later concerning the ICC.

Supporting Key ICC Impacts Can Advance Progress in Several Domains

The U.S. should navigate the current situation wisely for a third reason as well. The ICC – despite its limitations and challenges – is also having some important impacts that are consistent with longstanding U.S. interests. I’ll discuss these impacts and their benefits for US policy in my next blog post.

To sum up, as complicated as the U.S.-ICC relationship undoubtedly will be over the next few years, the United States has an enormous stake in addressing these challenges calmly and constructively. Not only should we be firm in our commitment to seeking justice and accountability for the worst international crimes; we should continue to support a range of different mechanisms – domestic, hybrid, and international – that together can help advance justice and accountability for mass atrocities and contribute, over time, to more effective prevention.

Image: Darren McCollester/Getty

 

About the Author(s)

Jane Stromseth

Professor of Law at Georgetown University, Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice at the U.S. Department of State (2013-2015)