An international prosecutor, Fatou Bensuda, was advised Thursday by a panel at Hague that she should go ahead and investigate alleged war crimes committed by Americans in Afghanistan. It’s a shocking development.
Secretary of State Mike Pompeo called the International Criminal Court panel’s ruling “a truly breathtaking action by an unaccountable political institution masquerading as a legal body.” It is, but what to do?
In a little noticed address to the American Israel Public Affairs Committee last week, Senator Ted Cruz urged an American push at the United Nations Security Council to ban ICC investigations against Israelis, Americans, or citizens of any other non-member of the Hague-based court.
According to the Rome Statute, which governs the ICC — a global trial venue for war crimes and crimes against humanity — it has no jurisdiction over countries that have not joined its 123 member states. So non-members like America, Israel, China, Russia, and India are off limit. Or are they?
When the court started functioning in 2002, I made a bet with a friend, an avid universal jurisdiction supporter, that despite non-membership, Americans and Israelis would early on end up in the dock. I lost that bet, but only because I thought such ICC prosecutions would be launched right off the bat.
In the early days, the court went after alleged war criminals in places like Darfur, Congo, Burundi, and the Central African Republic. A few years ago, however, several African countries contended there’s a racist pattern against their continent and threatened to renounce their ICC membership. Political pressures grew on Ms. Bensouda, the Gambian-born ICC prosecutor, to land more visible non-African fish.
With that, a loophole was found to allow prosecution of Americans. In November 2017, Ms. Bensouda asked an ICC appeal panel to investigate cases against American military and CIA personnel over alleged war crimes in Afghanistan, which is an ICC member. Last year the panel rejected the request. What happened Thursday is that an appeals panel reversed the decision.
The new gusto to try Americans in Afghanistan looked a bit awkward at the exact moment the Trump administration pushes to end our presence in Afghanistan. The Afghan government opposes the ICC move but the court and its supporters in the West are delighted.
It’s not just Afghanistan. In 2015, Palestine, a UN “observer state” that is unrecognized by America and others, joined the ICC as a full-fledged member, and immediately pushed to try crimes allegedly committed by Israeli soldiers in the territory of its “state under occupation.” Last December, Ms. Bensouda asked the ICC appeals panel to open an investigation against Israelis combating terrorists in Gaza. That case is pending.
“I’d like to see an effort at the UN Security Council to prevent the International Criminal Court from moving against any nation state that is not a member,” Mr. Cruz told the American Israel Public Affairs Committee last week. Such a move, he said, “would protect Israel, and it would protect the United States from our enemies using the ICC to try to target our citizens and our soldiers for persecution.”
It could prove difficult, but not undoable. The much-cited concept of international law is based on agreed treaties and binding Security Council decisions. The 15 member council itself can be a wild card. Nine supporters must be gathered to pass a resolution. America’s habitual veto-wielding opponents, China and Russia, may in this case side with a resolution that would exempt them from the the Hague’s reach.
Hard to say at the moment. Most European members, though, are avid ICC supporters. America has leverage to pressure council members and, beyond Turtle Bay, Washington can use America’s global clout to press countries that have initially cheered the formation of the ICC (or at least thought joining would make them look good) to now drop out.
Following the post-WWII lustration at Nuremberg, war crimes and crimes against humanity were tried in international tribunals dedicated to specific cases, as in Rwanda and Bosnia. The formation of the ICC meant to replace such ad-hoc venues with a permanent, global body. What’s coming to a head is a showdown over that mistake.