Above: US military facilities at Bagram airfield, Afghanistan. Image: DoD

This piece is the latest in our online symposium–spearheaded by Professor Laura Dickinson–focusing on the International Criminal Court’s (ICC) probe in Afghanistan and its implications for the United States.

This timely series on the International Criminal Court’s (ICC’s) potential exercise of jurisdiction over U.S. citizens has appropriately addressed the most important legal issue—that of the Court’s jurisdictional boundaries with respect to non-party nationals. But, as with so many conflicts residing in international law, the real issue is, and will remain, one of politics. And the state of play politically is best seen not through the lens of jurisdiction, but through complementarity, a protective principle that thus far has been found wanting.

Jurisdiction Over Non-State Parties

First, a summary of the jurisdictional landscape. Legally, there are compelling arguments for both sides of the debate regarding jurisdiction over persons who are not nationals of state parties. One certainly can claim, as has the United States, that since the ICC’s jurisdiction is grounded in international law, which requires some form of state consent, a new treaty-based jurisdictional regime cannot possibly act with force of law on non-parties without their consent. Thus, non-party nationals should be outside the jurisdiction of a court that has not been acceded to by their states. Conversely, those favoring the more expansive ICC jurisdictional regime point out that jurisdiction over a non-party national is predicated on the delegation of pre-existing territoriality-based jurisdiction to the ICC. Thus, a state that is party to the Rome Statute—in this case Afghanistan (and to a lesser degree, states like Poland, Romania, and Lithuania that allegedly housed CIA detention sites)—clearly has jurisdiction over the crimes alleged to have been committed on its territory; and it can transfer that jurisdiction to the ICC. One refinement would limit the effect of this latter syllogism if the predicate territorial state diminished its inherent jurisdiction through an exclusive jurisdictional agreement with the state of nationality (see, e.g., this argument by Prof. Mike Newton).

But the entire debate regarding legality of the jurisdictional regime is an academic one, and the ICC’s process has its own judges to grade that exam. Therefore, regardless of the relative cogency of various jurisdictional arguments, we all know how the decision will come out. We can reasonably expect that an ICC judge—a person who likely sits near the apex of a distinguished career in international law—will be reluctant to eviscerate the very foundation on which he or she sits by declaring the ICC’s constitutive statute fatally flawed. Academic jurisdictional arguments are unlikely to win the day in an ICC trial chamber.

A Primer on Complementarity

The ICC proponent would argue this conclusion to be both correct and anodyne because the complementarity principle obviates any risk to a state’s citizens: the ICC exercises jurisdiction under Article 17 of the Rome Statute only in the absence of a state’s ability and willingness to police its own personnel. Because no responsible state would facilitate impunity for those who commit “unimaginable atrocities that deeply shock the conscience of humanity” or “the most serious crimes of concern to the international community as a whole,” the United States has no objectively rational reason to fear the ICC. For years, supporters of the ICC have made this argument—both inside and outside the U.S. government. But with the Afghanistan investigation, we now have the first real test. And thus far, complementarity—a protective principle of deference—has yielded no protection and has been applied without deference.

Complementarity was a key component of the ICC from its inception. It theoretically was given its widely-touted puissance, however, during treaty negotiations when the U.S. delegation, led by Ambassador David Scheffer, made a series of proposals designed to bolster the concept. This was done because the United States was almost certain to be unsuccessful in securing an acceptable jurisdictional regime (because the U.S. government was internally incapable of deciding what to seek). The prediction was borne-out in the Rome Statute’s language, and complementarity procedures became the ersatz replacement for a more conservative jurisdictional regime.

U.S. complementarity procedure additions were controversial across the board. Externally, “like-minded” states fighting for a stronger prosecutor feared U.S. proposals were procedurally sclerotic. Internally, the Department of Defense (DoD), the department most skittish about the nascent treaty, was not the supporter some might have expected. The Pentagon feared others could wrongly interpret active U.S. engagement on complementarity as signaling the sufficiency of that remedy to combat its fear of “politically-motivated” prosecutions that would be unimpeded by sufficient jurisdictional constraints.

The Clinton Administration was successful in bolstering complementarity, even while rejecting the Rome Statute in general due to its expansive jurisdictional regime. Predictably, after the United States rejected the treaty in 1998, the consistent reclama from ICC advocates has been that the principle of complementarity protects Americans from The Hague-based ICC. The United States, the argument goes, with the most robust military justice system in the world, has nothing to fear from an ICC if it simply behaves responsibly. (Note that this argument evokes the more recondite concern that the ICC’s jurisdictional regime fundamentally alters the UN Charter premise that only the UN Security Council can exercise coercive authority over state foreign policy decisions—an arguable malady that is unmitigated by complementarity; we address here only the secondary but more common argument that the ICC puts U.S. officials at risk for politically-motivated prosecutions.)

Complementarity and Genuine Investigation

Complementarity technically is a concept that impacts the “admissibility” of a case as opposed to providing jurisdiction over the alleged offenses.  Under this principle, states have the first responsibility and right to prosecute the most serious international crimes, and the ICC may only exercise jurisdiction when states are unwilling or unable genuinely to investigate or prosecute. As is so often the case, the devil is in the details; the Rome Statute left unresolved how the ICC would determine whether an investigation had taken place and whether it was genuine.  And we have seen in the context of the Afghanistan investigation that complementarity simply does not work as advertised by ICC proponents—or perhaps even by some to whom John Bellinger recently referred as championing a “more pragmatic ‘modus vivendi’ with the ICC.”

In determining whether there is a reasonable basis to proceed with an investigation, the Office of the Prosecutor (OTP) is charged with considering several factors, including complementarity. In its most recent report on the status of preliminary examinations, the OTP indicates that “[c]omplementarity involves an examination of the existence of relevant national proceedings in relation to the potential cases being considered for investigation by the Office. […] Where relevant domestic investigations or prosecutions exist, the Office will assess their genuineness.”  Indeed, the OTP has stated that complementarity is often the critical component of its preliminary examination analysis.

The U.S. Investigative Process

In theory, complementarity should resolve practical concerns regarding politically-motivated excesses. Since no reasonable U.S. official would argue that the United States lacks the authority or will to investigate and prosecute the most serious atrocities, why would it have concerns about ICC jurisdiction over American nationals? The answer is that complementarity analysis is necessarily burdened by myriad facts; and facts can be manipulated to an even greater degree than can the law—especially facts not associated with the gravamen of an offense like the relative genuineness of a state’s claim to having conducted an investigation.

Any review of the Afghanistan examination yields significant questions as to how the OTP could possibly deem U.S. detention practices to meet the admissibility (not to mention, interests of justice) threshold. The United States has repeatedly made clear that, as a non-party, it rejects any assertion of ICC jurisdiction and does not consider itself legally required to satisfy the OTP’s demands for information. Yet, during the preliminary examination, U.S. officials met regularly with the OTP, supplied it with copious information regarding investigations and processes, and answered questions related to specific allegations. Moreover, the Pentagon expended hundreds of man-hours attempting to determine whether there was any actual evidence to support OTP allegations, and whether those allegations had been reviewed. This was no easy task considering the fact that in the collective theaters of war DoD had detained more than 100,000 persons and OTP evidence, often derived from bald assertions by human rights organizations, would never meet the credible information standard used for the thousands of detention-related investigations the United States had conducted.

It is worth noting that no country has ever self-investigated or self-reported its detention policies and practices more than the United States. Reports regarding U.S. detention operations include those of Brigadier General Jacoby; Vice Admiral Church, the Navy Inspector General; Major General Ryder, the Army Provost Marshal General; Lieutenant General Mikolashek, the Army Inspector General; Major General Miller; Major General Taguba; Major General Fay; Lieutenant General Jones; Brigadier General Formica; the independent panel led by former Secretary of Defense Schlesinger; the Senate Select Intelligence Committee; and the Senate Armed Services Committee. For the sake of transparency and accountability, many of these reports were released, at least in some form, to the public, demonstrating both the seriousness with which the United States takes these allegations and its willingness to address them publicly.

Over the course of the war in Afghanistan, the United States detained thousands of individuals and operated many temporary and long-term detention facilities. Each detainee in U.S. custody was assigned an Internment Serial Number and given access to the International Committee of the Red Cross (ICRC), and detainees were repeatedly given the opportunity to report any allegations of abuse to military and ICRC officials. Between the Afghanistan and Iraq conflicts, thousands of allegations of detainee mistreatment were received and professionally investigated by U.S. law enforcement or military authorities, and those found to have violated the law were punished. Between these specific investigations and the more general examinations of detention practices, the United States has devoted substantial time and resources to accountability and disciplinary efforts.

To be sure, in the countless interactions between U.S. personnel and the tens of thousands of detainees held during the conflict in Afghanistan, there were well-documented and regrettable instances of abuse that demanded genuine investigation and accountability. But the United States takes its international and domestic legal obligations seriously, and its policy has always been to treat detainees humanely and to investigate every allegation of abuse for which there is credible information. Indeed, the U.S. government regularly conducted investigations into specific allegations of detainee abuse knowing full well that many detainees had been trained to claim mistreatment to necessitate U.S. expenditures of time and money. Each such investigation demonstrated that a policy of systematic abuse did not exist.

Politically Twisting the Process

It is difficult to understand, then, how the OTP could conclude that there was reason to believe threshold criteria existed for a general failure to investigate or prosecute. Even more inexplicable is the OTP’s conclusion that whatever incidents it thinks were not covered by the copious investigations somehow satisfy the “widespread and systematic” criteria required for crimes against humanity or, in the case of war crimes, that they were committed “as part of a plan or policy or as part of a large-scale commission of such crimes.”

Nonetheless, in a paradigmatic example of manipulating process to support its conclusion, the OTP has used this self-investigation not as evidence of transparency or genuine attempts to ensure accountability, but as evidence of U.S. culpability. The record demonstrates the United States’ firm commitment to investigate, assess, and adjust detention operations during armed conflict and to prosecute abuses when appropriate. But in a perverse twist, the OTP cited improvements and policy clarifications not as laudable complementary efforts at ensuring humane treatment but as proof of wrongdoing. This is a common legal maneuver whereby the (incorrect) assumption is that a policy would not need clarification or modification if it had not previously amounted to a violation. And instead of avoiding any hint of political manipulation, some in the OTP actually have admitted that part of the rationale for rejecting complementarity claims was to counter African criticisms that the ICC is a Western court only interested in prosecuting nationals of third-world countries. In other words, the complementarity principle has been turned on its head, and the reasons for it are political.

In 1998, U.S. negotiators explained to international counterparts who were more sanguine about their cause that American reluctance was due to a desire to protect U.S. persons from politically-motivated prosecutions and investigations. The expressions of fear were perceived then as Chicken Little ramblings, but in hindsight, they evince prescience. In attempting to identify an outcome that salvages the ICC’s complementarity regime, a good start might be according substantial deference to responsible states that specifically demonstrate the robust system of investigation and prosecution that the United States has. But that would provide no guarantees with respect to future courts. As a result, under any analysis, complementarity provides no panacea to the Rome Statute’s jurisdictional maladies.