The International Criminal Court (ICC) has, since its creation in 2003, been the subject of much criticism. The axe that its critics grind the most is that, despite being set up as a permanent court to end impunity for atrocities globally, it seems to be focusing its efforts solely on the African continent. Critics decry bias and racism, and argue that insufficient attention has been paid to the war crimes that have been committed by the US. After all, it seems unfair that the global superpower should be immune from global justice. But might all of that be about to change?
There are reasons to think so. In a report published by the Chief Prosecutor's Office this week, entitled 'Report on Preliminary Examination Activities', the Court seemed to suggest that US servicemen and women could for the first time be investigated for violations of the laws of war. The following excerpt from the report hints at this:
"Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014"
Even more boldly, the report states:
"[T]he Office has determined that there is a reasonable basis to believe that, at a minimum, the following crimes within the Court's jurisdiction have occurred:
c. War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan"
In effect, the Prosecutor has argued outright that war crimes were committed by US forces and that the ICC is in a position to investigate and perhaps even prosecute them on that basis. If true, this could be huge.
Recognition of the US's culpability for atrocities committed in Afghanistan, issued by the world's authority on international crimes, would act as the strongest rebuke to date, sending out a powerful message to survivors everywhere that war crimes, no matter who commits them, are unacceptable. This opens up opportunities for survivors and their families to finally obtain justice and reparations, affording them a sense of closure, dignity and respect. For those communities affected- who are, after all, the most important stakeholders in international justice- the benefits would be indescribable.
There is an additional fringe benefit to such an investigation: namely, it becomes a lot more difficult for certain critics to dismiss the ICC's mission as "racially biased" at the point where it pursues the most important player in foreign policy. I have written elsewhere about how these accusations are often employed by states with dubious human rights records in order to discredit the ICC's rightful criticism of their actions. Providing an effective response to these claims will allow the ICC to rebuild and improve its relationships with the communities affected by war crimes.
But there is an obvious and possibly insurmountable barrier to achieving all of this: enforceability. All investigations and trials require some degree of state co-operation in order to succeed. Whilst an impressive body of evidence has already been produced, the only way to ensure that any servicemen or senior personnel are actually brought before the Court is through enforcing arrest warrants. But this is easier said than done.
The ICC has a fraught relationship with the US, to put it mildly. Although President Clinton did give the executive's signature to the Rome Statute (on his last day in office), his successor, George W. Bush, proclaimed in no uncertain terms that the US would not be signing up to the Court under his watch. So strong was his rejection of the Court that Congress was prompted to pass the American Service-Members' Protection Act, a law which gives authorisation to the president to invade The Hague should the ICC attempt to indict a serviceman. Whilst the relationship was somewhat repaired during the Obama administration, all prospects for this have disappeared since Trump's election. Although co-operation with the Court was hardly a pillar of his campaign, there is ample evidence to suggest he is not a fan. Sources have suggested that he is primed to nominate John Bolton for the position of Secretary of State, a man who famously claimed that the decision of the Bush administration to unsign the Rome Statute was the "happiest moment" of his political career. All in all, prospects are grim.
But even if an indictment against a US serviceman doesn't reach fruition (barring the possible invasion of The Hague), the investigation could still be incredibly important. In the first place, it could increase pressure on the US to prove that the court martial system currently in place is effectively delivering justice to survivors. There are already important civil society and NGO initiatives underway to increase transparency in the way the US justice system deals with claims of war crimes being committed. The ICC could join activists in playing a crucial role in this process.
Whatever direction US foreign policy takes come January, all eyes will be on the ICC to see how it adapts to these new challenges, and how it embraces the opportunities it is presented with. It must not grow complacent.