ICC Prosecutor Fatou Bensouda presents at the Fifth Annual Blouin Creative Leadership Summit in New York in 2011. (Credit: Thos Robinson/Getty Images for The Louise Blouin Foundation)

Stephen Pomper has already provided a thoughtful and detailed analysis of the positives, mysteries, and absences in the United States’ formal response to the International Criminal Court (ICC) Prosecutor’s November request to commence an investigation of war crimes and crimes against humanity in Afghanistan. In a prior essay, I wrote about the challenges the ICC will face when the judges allow the investigation to move forward, as they surely will.

In its statement, the United States reiterates its long-standing position that the ICC lacks jurisdiction over its nationals because the United States is not a party to the Rome Statute (presently 123 states are members). “The United States rejects any assertion of ICC jurisdiction over national of States that are not parties to the Rome Statute, absent a UN Security Council referral or the consent of that State,” the statement reads. As Pomper observes, the argument is neither developed nor particularly persuasive. As many have written elsewhere (David Bosco and Kevin Jon Heller, relying on Dapo Akande, to name a few), the claim that the ICC lacks jurisdiction over the actions of nationals of non-State Parties when they act on the territory of a State Party has been widely rejected in the international community, at least as a legal matter. Since it is accepted that states can prosecute individuals that commit crimes on their territory (think: Afghanistan can prosecute Saudi Taliban members), it stands to reason that those states (Afghanistan) can delegate that jurisdiction (over Saudi nationals) to an international tribunal like the ICC. Afghanistan, as well as the three states that allegedly housed black sites, are all members of the ICC. That means the Court has jurisdiction over war crimes allegedly committed within the territory of those states—regardless of what the nationality of the alleged perpetrator happens to be.

Pomper notes that I have suggested elsewhere that the U.S. position might have more resonance, however, not as a legal point but rather as a prudential one, aimed not at the judges but rather at the Office of the Prosecutor. To be sure, it was inevitable that the Prosecutor would seek to open an investigation in Afghanistan, given the clear jurisdictional foundation for one and the magnitude of the alleged crimes across the battlespace. It was also predictable that she would be compelled to include within the investigative frame the alleged acts of torture by U.S. officials. Given the way the Court has interpreted its mandate, and in particular the gravity requirement, these outcomes were foreordained.

However, once an investigation is commenced, the Prosecutor has considerable discretion in how she prioritizes her efforts and what cases she brings. Already there are strong reasons to think, as I noted in my previous piece, that she will (and should) focus first on the alleged Taliban crimes, as they far outnumber the crimes allegedly committed by the other actors in the conflict. Further, in 2016 the Prosecutor issued a “Policy Paper on Case Selection and Prioritisation” in which she outlined operational considerations when deciding which cases to prioritize, including “international cooperation and juridical assistance to support the Office’s activities,” “the Office’s capacity to effectively conduct the necessary investigations within a reasonable period of time,” and “the potential to secure the appearance of suspects before the Court” (Para. 51).

These prioritization considerations all make sense. The Court has extremely limited resources and a broad mandate (the ICC is already investigating in 9 different countries, not including Afghanistan). Further, as a nascent international organization, it needs to build itself through the successful execution of its core mission, bringing actual cases against actual defendants who appear in the dock in The Hague. As I wrote a year ago, particularly in the first phase of life for the institution, investigations that do not produce these results risk frittering away the Court’s resources, credibility, and legitimacy.

This policy of the Prosecutor, and the reasons that underlie it, suggest that she should presumptively de-prioritize investigations of non-State Party actors unless there is a clear indication of an investigative path forward. The ICC has failed when it has tried to advance investigations without international support, either from the state being investigated or the broader international community (think Sudan and Kenya), a reality that existed also at the International Criminal Tribunal for the former Yugoslavia (think Kosovo) and the International Criminal Tribunal for Rwanda (think the Rwandan Patriotic Front). Non-State Parties have no legal obligation to cooperate with the ICC, and there is little reason to expect that they would do so voluntarily except in unusual circumstances. Unless they can be pressured to cooperate with the ICC by other powerful states, or unless the ICC finds a way to locate sufficient evidence without the cooperation of the non-State Party, there is little prospect of a successful criminal investigation. Even if the ICC thinks it can find a way to cobble together sufficient evidence to mount a successful prosecution, it needs to consider whether realistically it will be able to get the accused to The Hague, either by arrest or surrender. And remember that when international tribunals fail because of political realities, it is typically the courts that get criticized, blamed, and de-legitimized, not the states that failed to support them. Down that road, there are often no winners.

To be clear, the presumptive de-prioritization of non-State Party investigations does not mean that the investigations are dropped for good. It simply means that they are put on the shelf in favor of more promising cases. It does not even require an explicit pronouncement by the Office of the Prosecutor, just a decision about where it chooses to deploy its resources. Simply the fact that the Court has an open investigation will help keep a light on the alleged acts of the non-State Party actors. Finally, it does not mean only doing the easy cases. The Court should take on hard cases, and sometimes it is only in trying to investigate a case that it becomes apparent how the pragmatic factors cash out. But there is a difference between hard cases and practically impossible ones, and in some instances, that can be determined early in the process. Presumptively de-prioritizing non-State Party investigations will also keep the Court out of conflict with major powers that sit outside of the Court and that have no stake in the Court’s preservation.

There is no question that there is a cost to this de-prioritization strategy. If the Court is perceived as backing away from investigations of non-State Parties, it will be criticized as bowing to major powers, and its legitimacy will be challenged. In other words, there are legitimacy costs no matter what strategy is pursued by the Court; the goal is therefore to minimize those costs.  Any gains that the Court might achieve today by taking on a major power like the U.S. are surely short-term: they will fade over time if the Court falters in its investigations, at the cost of both significant resources and credibility.

In the Afghanistan situation, the Prosecutor’s case prioritization policy will very likely cause her to put aside the U.S. part of the case for now, or even for a very long time. Given the constraints on the Court and what it needs to do in the coming years and decades to succeed and establish itself, that might be the right decision. Live to fight another battle. The victims of atrocities in places where the Court can do something about their plight deserve this sort of pragmatic calculation.