After more than two years combatting the Trump administration’s egregious attacks on the International Criminal Court (ICC), it is refreshing to contemplate a possible return to a constructive U.S. policy toward the Court. The American Society of International Law Task Force report is a critical contribution to the discussion. 

The task force describes ways in which the ICC’s work intersects with U.S. interests, and it makes valuable recommendations even beyond the ICC — for example, on advancing domestic prosecutions of atrocity crimes — that the Biden administration hopefully will adopt. But we disagree with recommendations that would make prosecution of U.S. nationals before the Court less likely, even in the absence of genuine national proceedings. This would advance neither justice nor the Court’s success.

The task force provides a panoply of options for constructive U.S. engagement with the ICC, even though it is not a State party. They include supporting witness protection and assistance to victims at the Court, reporting to Congress on ICC-related developments, and tasking its diplomatic missions to follow relevant developments in “situation countries” where the Court’s prosecutor is conducting investigations or preliminary examinations. It also recommends supporting ICC investigations under appropriate circumstances.

While these recommendations are positive, and would go beyond what the Biden administration has signaled about its prospective cooperation in “exceptional cases,” they do not go far enough. Since 2017, the ICC prosecutor has opened four new investigations, including on Burundi and Bangladesh/Myanmar, and announced that investigations are also warranted in Ukraine and Nigeria. The ICC is relevant in far too many places for the United States to sit on the sidelines. In the long term, the United States should join the Court, but in the meantime U.S. cooperation with the ICC should be the rule, not the exception.

The prospect of investigations in Afghanistan and Palestine — to the extent they could implicate the conduct of U.S. and Israeli nationals — triggered Trump’s attacks. The Afghanistan and Palestine situations, both now open before the Court but still in their earliest phases, are likely to be the source of considerable tension in the U.S. relationship with the Court. The Biden administration has already reiterated that it “disagree[s] strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations.”

The task force (Just Security Executive Editor Beth Van Schaack is a co-chair of the task force, with Ambassador Todd Buchwald) grappled with this reality. It provides several potential U.S. arguments to ensure the Court does not pursue cases against U.S. nationals, and suggests the U.S. could work in a mutually supportive way with Israel to the extent the latter also seeks to deprioritize cases against its nationals.

The task force sees these options as consistent with “reduc[ing] the prospect of future clashes between the ICC and the US,” and also to “put the Court on a firmer footing” in light of its track record of few convictions and inconsistent rulings. These options can be grouped in two categories: (1) U.S. steps to support a view that the ICC should deprioritize cases against U.S. nationals in the Afghanistan investigation, and (2) ways to engage with the ICC review process that would make future prosecution of U.S. nationals less likely in any situation by narrowing the scope of the Court’s work. (The review is being conducted under a December 2019 resolution of the Assembly of States Parties intended to strengthen the ICC “as a means to end impunity” for perpetrators and “bring justice to the victims,” and to “improve its performance.”)

While these recommendations seek to work with the Court’s legal framework, at least some presume the United States has instituted a degree of accountability that doesn’t reflect the reality of the government’s actions. Furthermore, some recommendations could distort the review process in a manner that would undermine the ICC and accountability efforts far beyond the Afghanistan (and Palestine) situations.

U.S. Inaction on Justice for Abuses in Detention 

The task force does not trivialize allegations of abuse by U.S. nationals in connection with the Afghanistan conflict. It also rebuts Trump administration arguments about politicization of the ICC and reiterates that the longstanding U.S. objection to ICC jurisdiction over nationals of non-states parties has no basis in the Rome Statute. It seeks instead to identify arguments to convince the prosecutor to deprioritize cases against U.S. nationals based “on the totality of steps that [the United States] has taken to address allegations and prevent recurrence, together with the scale of abuses.”

The Rome Statute contains avenues for national authorities to challenge the Court’s jurisdiction based on genuine domestic proceedings, consistent with the principle of complementarity. The ICC is a court of last resort. But the lackluster U.S. record on domestic proceedings to date should not preclude ICC investigation of these very serious abuses.

While the U.S. has conducted limited investigations into alleged abuses by U.S. personnel in Afghanistan, it has not prosecuted senior civilian and military officials who could bear responsibility for authorizing these abuses or for failing to punish perpetrators. The task force seeks to distinguish abuses by military personnel on grounds including that — unlike CIA torture — abuses were not explicitly authorized at the most senior level.

The public record is clear, however, that abuses were not exclusively by rogue actors but based on formal policies that authorized abusing detainees. Moreover, the failure to stop the abuses — and to continue to authorize using them elsewhere — led to a culture that condoned them. As the then-chairman of the Senate Armed Services Committee, Carl Levin (D-MI), said in opening an inquiry into detainee abuse in 2008, “when [Defense] Secretary Rumsfeld approved the use of abusive techniques against detainees, he unleashed a virus which ultimately infected interrogation operations conducted by the U.S. military in Afghanistan and Iraq.”

When it comes to CIA abuses, the task force presents possible arguments as to why, despite the absence of prosecutions, limited U.S. investigations should be considered sufficient to meet the Court’s test of genuine proceedings. It also suggests building out a complementarity defense based on non-criminal measures, like investigative commissions and legal and policy reforms to prevent recurrence.

But there is no excuse for the failure to prosecute senior officials for CIA torture. Nor is there evidence that even absent criminal prosecution, individuals were otherwise sanctioned. The U.S. record on accountability for military abuses is also abysmal. Victims were harmed without accountability, regardless of whether crimes were committed by the CIA or Department of Defense personnel. Policy and legal reforms do not suffice, given the nature of the abuses. The 6,000-page Senate Intelligence Committee report on CIA torture, most of which remains classified, provides gruesome accounts. Some victims remain in circumstances that perpetuate the harm they suffered, despite more than 15 years in U.S. custody.

The task force stresses that this is a pragmatic approach, not necessarily an ideal one. But accepting this record as reflecting genuine efforts to bring about accountability would shortchange victims and dilute the Court’s standards. The task force also suggests the U.S. could underscore its status as a non-State party. But creating a lower threshold would undo a core element of the Court’s treaty: making the nationality of the accused irrelevant for crimes committed on the territory of States parties, as is the case in the Afghanistan situation.

Distorting the ICC Review Process 

The task force recommendations on using the review process to influence the ICC’s admissibility criteria are particularly worrisome. Recommended changes would echo the task force suggestions for U.S. arguments in the Afghanistan situation, namely: (1) raising the gravity threshold, or (2) reimagining complementarity in a way that would fall short of traditional criminal prosecutions, with different standards for non-States parties.

The review process, however, is aimed at strengthening the Court’s delivery of justice, following disappointment in its performance. It should not be used to subvert the Court’s reach in applying justice. The design of the review process included hard-won safeguards to insulate it from the agendas of individual States parties, with an assessment of the Court’s functioning by a group of independent experts at its center.

To be sure, there has been interest among some States parties to clarify aspects of complementarity as part of the review, and the independent expert review addressed the alarming gap between the Court’s workload and available resources. But that group’s recommendations for policy or practice changes in these areas were addressed exclusively to the Court’s prosecutor and not to States parties.

Indeed, States parties — and the United States — should approach complementarity in the review process with extreme caution, if at all. Decisions about which situations and cases to pursue go to the heart of prosecutorial and judicial independence. These principles are not up for grabs.

We agree that “the Court is spread too thin.” Its budget has remained more or less at zero-growth since 2017. But widening the impunity gap by advancing an understanding of complementarity that would justify non-prosecution — particularly by non-States parties where the ICC properly has jurisdiction — is no answer.

The test advanced by the task force may also worsen double standards. Powerful states could mount national inquiries to insulate themselves from the Court’s reach, even without prosecutions, while less-resourced states would remain subject to the Court’s jurisdiction.

Better solutions include: developing robust strategies for responsibly completing ICC investigations to maximize true justice for affected communities and build capacity to support domestic investigations and prosecutions to complement those brought by the Court; expanding the Court’s capacity through better resourcing and performance; redoubling atrocity prevention and rule-of-law efforts globally; and conducting a stakeholder discussion to set out a 10-year strategy for the Court, as the independent expert group recommended.

Bringing the United States into partnership on international justice is important. But States parties and other stakeholders should remain vigilant that it does not come at the expense of the Court’s mandate. The review process should not be a Trojan horse that undermines, rather than strengthens, the Court’s delivery of justice.

U.S. support for international justice has been game-changing in some situations, such as the impact of U.S. involvement when it came to the International Criminal Tribunal for the former Yugoslavia, and it could be for future efforts to pursue justice through the ICC, as already seen given the U.S. role in the surrender of two suspects to the Court. It should not come, however, at the cost of subtly degrading the Court’s legal framework or excluding valid claims from victims of grave crimes.

(Co-author Liz Evenson served on the advisory group of the ASIL Task Force.)

IMAGE: Visit to the ICC by a delegation of the Islamic Republic of Afghanistan on Friday, 7 May 2021. Left to right: H.E. Mr Fazal Ahmad Manawi Minister of Justice of the Islamic Republic of Afghanistan, Mrs Fatou Bensouda, Prosecutor of the ICC, and H.E. Mr Mohammad Haneef Atmar, Minister of Foreign Affairs at the Seat of the Court in The Hague, The Netherlands. (Photo courtesy of the ICC via Flickr)