Just Security is pleased to launch this online symposium–spearheaded by Professor Laura Dickinson–which is focused on the International Criminal Court’s (ICC) probe in Afghanistan and its implications for the United States.

Since late November—when the International Criminal Court’s Prosecutor, Fatou Bensouda, announced that she would seek permission to open an investigation into the situation in Afghanistan that includes allegations against U.S. personnel—the United States and the ICC have been on a slow motion collision course.  But it’s still not clear whether that collision will happen.  Both parties have good reason to maneuver past each other and some means to do it.  The stakes are high for the court, and how these maneuvers unfold could have a profound impact on its future work.

Why Washington should not want a collision with the ICC

As I described in November, and John Bellinger more recently detailed, the George W. Bush administration’s early efforts to undermine the court are generally regarded as something of a bust.  Propelled by then-State Department official John Bolton, the administration helped generate a statute authorizing invasion of the Netherlands to rescue any U.S. personnel who might be brought before the ICC, and used the threat of security assistance cut-offs to secure agreements from partner countries not to send U.S. personnel to The Hague.

Soon enough it became clear that the costs of this heavy-handed strategy outweighed perceived benefits.  While there was some success negotiating immunity agreements, some countries preferred to forego U.S. security assistance than sign, and European partners did not appreciate the attack on an institution they were seeking to build.  What’s more, the U.S. government found it difficult to reconcile its overall support for global criminal justice with a posture of persistent attack against its preeminent institution—especially when there were situations like Darfur where it felt the court could pay a helpful role.  By the end of the Bush administration, the U.S. government had moved from a hostile posture to something more like a wary partnership with the court. That relationship further improved during the Obama administration, which saw a positive role for the Court in other situations such as those involving the Lord’s Resistance Army and the turmoil in the eastern Democratic Republic of the Congo.

While the relationship has certainly cooled over the last year (as described here), the U.S. government response to the Prosecutor’s Afghanistan announcement has been measured and suggests a wariness of returning to the bad old days of 2003.  This modus vivendi probably won’t survive the double-whammy of the actual launch of the investigation (which is likely to be approved and publicly announced any day) and the return of John Bolton to the U.S. government as National Security Advisor, but the question is how big the changes will be. As recently as November, Bolton penned an op-ed in the Wall Street Journal suggesting that the White House reply to any ICC request for cooperation on the Afghanistan situation with the message “you are dead to us,” so we can expect a more combative tone.  That said, it’s not clear he will be spoiling for a big fight.  Bolton may not like the past drift of U.S. policy toward the ICC, but he has also made clear for years that he regards the court as weak and a failure, and he will have other major issues on his plate.  Rather than spending a lot of energy trying to bring down the court, he may find it more appealing to identify a solution that just makes the Afghanistan matter go away.

Why the Prosecutor should not want a fight with the United States

The Office of the Prosecutor is in a difficult place.  There is a fundamental mismatch between the ambitions and ideals of the institution that the Prosecutor serves and the reality within which it operates.  Those ideals and ambitions would place the ICC in a position to administer equal justice to all nations and all persons regardless of power or position.  But in reality, the court operates within a constrained legal and political space.  It enjoys greatest leverage over those countries that have formally submitted to its jurisdiction, and when it comes to countries that have not (including Russia, China, and the United States), it must play a difficult and dangerous game–balancing the need to appear principled and unintimidated with the reality that there are certain fights that it simply cannot win.  Compounding this challenge, the court lacks many of the tools that U.S. domestic courts avail themselves of to avoid wandering into political thickets (think, for instance, of the classification of certain disputes as non-justiciable “political questions”).

Against this backdrop, one can certainly imagine the Prosecutor having mixed feelings about whether to pursue cases against U.S. personnel in the Afghanistan situation.  On the one hand, her team may well be concerned that U.S. efforts at accountability for detainee abuse, guided by President Obama’s “look forward not back” directive, have been insufficient, and that pursuing these cases will serve the purposes of accountability and deterring future abuse.  To compound the matter, as Alex Whiting has suggested, the Trump administration’s recent nomination of Gina Haspel to be the next CIA director–notwithstanding her reported role running a CIA black site and involvement with the destruction of evidence of detainee abuse—may lead the Prosecutor to see these cases as even more important.  And as a political matter, the Prosecutor is under pressure to demonstrate to frustrated African leaders, who feel that their states have been disproportionately targeted, that the court is both willing and able to confront powerful members of the global North.

For better or worse, however, cases that go after the United States are extremely unlikely to succeed.  Any effort that the Prosecutor tries to make to go after U.S. personnel will come crashing, sooner or later, into political realities.  The first of these is that this court of limited resources and modest power has no meaningful record of success in pursuing prosecutions in non-cooperating jurisdictions.  It has simply been too hard for the Prosecutor to build cases relating to crimes that happened in places where she has no access.  In the present situation, the Afghan government’s halting reaction to the prospect of the investigation does not bode well for cooperation, and U.S. federal law prohibits cooperation in every meaningful way, although the access to some alleged victims may help the Prosecutor to compensate.

The second reality is that U.S. pressure will make the Prosecutor’s job even more difficult.  Poland, Romania, and Lithuania are all ICC states parties where some of the crimes covered by the proposed investigation allegedly occurred, but it seems unlikely that their cooperation will be especially quick or complete if Washington makes clear that it would view cooperation very dimly.  And even if the Prosecutor brings together enough information to indict former U.S. officials, what then?  We can expect Washington to push very hard for assurances from all of its partners that these officials can pass safely through their territory without being turned over to The Hague.  That would be an ugly tug of war and it is hardly clear that the court would prevail.

Perhaps the Prosecutor will decide it is worth absorbing the costs of pursuing an investigation that could well come to this end because she would prefer these to the costs of backing away, but she could hardly be faulted for deciding that the interests of the court would be better served by following a different path.

Avoidance Scenarios

Assuming that the parties prefer to steer past rather than into each other, here are two ways in which that might happen.

Prioritization and preparation: The first scenario would require both parties to show a measure of patience and restraint that seems unlikely but that would allow them quietly to continue kicking the can down the road.

In this scenario, the Prosecutor would follow the advice offered in Alex Whiting’s December article on case prioritization.  Relying on her office’s written policy that allows the deprioritization of cases that are unlikely to be timely and effectively completed, the Prosecutor could develop a presumption against the prioritization of cases against non-party states, including the United States, absent a clear investigative path forward.  (The more numerous cases against the Taliban and Afghan national security forces included as part of the Afghanistan situation would proceed unless halted for other reasons.)  The Office of the Prosecutor would not drop the U.S. cases altogether, but those cases would essentially become dormant, reflecting a recognition of the negligible prospects for success.  In the interest of transparency and minimizing some tensions, the Prosecutor might communicate this to affected parties, perhaps offering annual updates about whether their cases will continue to be dormant in the coming year.

For its part, the United States would focus its internal energies on developing the factual and legal foundations for mounting a legal challenge should it ever need to defend its interests in court.  As a factual matter, it could pull together the most complete possible file documenting its accountability efforts to date, including through the investigation of CIA activities led by veteran prosecutor John Durham.  Perhaps the picture that emerges would be sufficient to mount a “complementarity” defense that could persuade the Prosecutor to drop her efforts.  If not, then the right thing for the U.S. government to do—however politically improbable—would be to consider whether it has truly met its international obligations with respect to bringing alleged perpetrators to justice under the Convention against Torture and take steps to fill in any gaps.

At the same time, U.S. government lawyers could continue to work on what has been a longstanding challenge, which is to develop credible legal arguments for challenging the court’s jurisdiction over non-party states.  To date, the government has struggled internally to develop a theory that all relevant offices consider credible—i.e., one that is at least consistent with the principles of international law to which the U.S. generally subscribes, has some support in the relevant professional literature, and has tolerable implications when applied in other contexts.  It may be that the goal remains elusive but the government could at least spend some time consulting with leading academics and foreign counterparts.  Putting forward a non-credible theory would not only hurt the U.S. government’s own reputation, but would encourage damaging cynicism about the rules-based international order that it generally seeks to advance.  Even if cases against U.S. personnel are not deprioritized, the court does not work quickly; there should be sufficient time to do careful work, consult with leading academics and foreign counterparts, and consider whether there is a tenable argument.

Following this course, it’s entirely possible that the Prosecutor and the United States will steer around each other for years, even forever, but there would be downsides from the perspective of each party.  The Prosecutor would almost certainly be sharply criticized in some quarters for assuming a posture that accommodates the United States (and others), including by African states that already have a souring relationship with the court.  The United States would need to live with legal limbo, not knowing whether the Prosecutor might reverse her presumption and move forward with cases against U.S. personnel.  Given that vulnerability, Washington may well elect another, more assertive path, which is afforded by Article 16 of the Rome Statute.

The Article 16 option:  As noted in a very useful question and answer by Laura Dickinson and Alex Whiting, Article 16 of the Rome Statute vests in the Security Council the power to suspend an ICC investigation or prosecution for a period of 12 months, which can be endlessly renewed.  Although both Kenya and Sudan have previously approached the Council to seek a suspension, the Council declined to grant it, at least in part out of a combined sense that the interests of justice would not be served and a concern that breaking the seal on the use of Article 16 in any single case would create a precedent that would make it difficult to resist entreaties to apply it elsewhere.

These concerns certainly do not disappear in the Afghanistan situation, though the United States may argue that this situation can be distinguished.  For example, the United States might argue that court proceedings are interfering with the peace process in Afghanistan.  These arguments are unlikely to convince other Council members, however.  They will probably be seen as self-serving, however, particularly given that the administration has given few signals it is interested in pursuing a settlement with the Taliban any time soon.  It may also be difficult to explain why such considerations are more compelling in Afghanistan than, for example, Sudan.

Most important, however, is the reality of what it would take to strike a deal on the Security Council.  In order to pass an Article 16 resolution, the United States would need to command nine affirmative votes and avoid any vetoes from other permanent members of the Council.  This would not be all that easy.  Russia, which itself is the subject of an ICC investigation, would almost certainly extract reciprocal commitments.  The U.K. and France would likely resist the effort on principled grounds although vetoes from either are exceedingly rare.  Any final deal would therefore create a very broad precedent that would (unlike the prioritization approach) remove any discretionary power from the Prosecutor, further concretize the perception that the great powers consider the court a tool to address bad acts by and within other states but not themselves, and foster ill will between the United States and its traditional French and British partners.

The bottom line, though, is that if the United States decides it wants an Article 16 pause and is willing to cut the requisite deals then this could well happen.  And while we don’t know that this is what Bolton does want, one could imagine the appeal of this approach from his perspective: It’s an assertion of power by one institution he reportedly respects (the Council) over one he doesn’t (the court) and it takes the issue entirely off the U.S. government’s plate for at least a year—and quite possibly indefinitely depending on what understandings are struck.  Moreover, it follows a procedure outlined on the very face of the ICC’s Rome Statute, which would help to blunt arguments that the United States is subverting the rules-based international order.

Yes, inaugurating the use of Article 16 would have collateral consequences, including that it could increasingly become a vehicle for the Council to challenge the court’s authority for reasons that may or may not have anything to do the interests of peace or justice.  That seems like a downside to this approach, but from National Security Advisor John Bolton’s perspective, it could well be among its more attractive features.