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Explainer: Why Does The U.S. Have It Out For The International Criminal Court?

U.S. national security adviser John Bolton speaks to the Federalist Society in Washington on September 10.

John Bolton, U.S. President Donald Trump's national security adviser, threatened on September 10 that Washington would impose sanctions against judges and prosecutors of the International Criminal Court (ICC) if they proceed with an investigation into war crimes allegedly committed in Afghanistan by Americans.

"We will ban its judges and prosecutors from entering the United States," Bolton said. "We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans."

White House spokeswoman Sarah Sanders said Bolton's remarks came after the ICC told Washington it was "on the verge" of announcing a decision about possible Afghanistan investigations.

"We're letting them know our position ahead of them making that decision," Sanders told journalists on September 10.

In fact, the pending decision is expected to authorize an investigation into alleged atrocities by Taliban and Afghan government forces.

But it also could cover cases where U.S. interrogators are accused of torturing detainees within Afghanistan and at "black sites" in Poland, Romania, and Lithuania.

Bolton said Trump's administration "will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court."

"This president will not allow American citizens to be prosecuted by foreign bureaucrats, and he will not allow other nations to dictate our means of self-defense," Bolton said.

The headquarters of the International Criminal Court in The Hague.
The headquarters of the International Criminal Court in The Hague.

What Exactly Is The International Criminal Court?

The ICC is the world's first permanent judicial institution that claims jurisdiction to prosecute individuals under international law for genocide, crimes against humanity, and war crimes.

It was established as an intergovernmental organization at The Hague, Netherlands, in 2002 under a treaty known as the Rome Statute of the International Criminal Court.

The court is overseen by an assembly of the 123 countries that have ratified the Rome Statute. Those member states include all of South America, almost all of Europe, most of Oceania, and about half of Africa.

Another 31 countries have signed but not ratified the Rome Statute.

Four of those signatory states -- the United States, Russia, Israel, and Sudan -- have informed the United Nations they no longer intend to become state parties.

Forty-one UN member states have not signed the Rome Statute. They include China and India, which have both been highly critical of the ICC.

How Is The International Criminal Court Structured?

The ICC comprises four branches -- the presidency, a judicial division, the prosecutor's office, and the registry.

Three judges form the ICC presidency, which is responsible for the court's administration. Each member of the presidency is elected by the court's judges for a maximum of two terms, each lasting three years.

The judicial division has 18 judges who sit in the ICC's three chambers: a pretrial chamber, a trial court, and an appeals court.

The prosecutor's office of the ICC investigates cases referred by state parties, by the UN Security Council, or by judges in the pretrial chamber. In cases that reach trial, it also conducts the legal proceedings against defendants.

The ICC's registry is responsible for nonjudicial matters such as legal aid, court management, witnesses and victims, a detention unit, and traditional administration services.

What Is The History Of U.S. Opposition To The International Criminal Court?

The United States never joined the ICC and has consistently opposed the empowerment of an international court that could try U.S. military and political leaders under international law.

That's largely because of concerns that U.S. soldiers and civilian leaders might be put on trial, without U.S. constitutional protections, by an anti-American prosecutor in a court with non-American judges.

Instead, war crimes and crimes against humanity are prosecuted in U.S. courts under the War Crimes Act of 1996 -- a law that applies if either a victim or the perpetrator of an alleged war crime is a U.S. citizen or a member of the U.S. military.

During the 1990s, before the ICC was established, negotiators from U.S. President Bill Clinton's administration sought to give the UN Security Council the power to screen ICC cases. Such a safeguard in the Rome Statute would have given the United States and other permanent Security Council members the ability to veto cases they opposed.

But other countries refused to agree to those measures.

Global Policy Forum, a nongovernmental policy watchdog monitoring the work of the UN, said that is when Washington began "campaigning to weaken and undermine the ICC."

President George W. Bush's administration actively sought to keep the ICC from attaining jurisdiction over the United States or its citizens.

It did so by negotiating bilateral agreements with about 100 other countries to ensure U.S. citizens would have immunity from prosecution by the ICC.

President Barack Obama's administration took steps to engage with the ICC by participating with that court's governing bodies and providing support for its ongoing prosecutions.

Why Has The ICC/Washington Dispute Suddenly Escalated?

Bolton's threat to impose sanctions against ICC judges and ICC prosecutors comes just days before an expected decision by ICC pretrial judges on whether an ICC prosecutor should conduct a formal investigation into possible war crimes in Afghanistan during the past 15 years, possibly including by Americans.

The ICC in 2016 said members of the U.S. military and the CIA may have committed war crimes by torturing detainees in Afghanistan.

In November 2017, ICC prosecutor Fatou Bensouda announced she would request authorization from ICC judges for an investigation into the situation in Afghanistan.

Since Afghanistan is a state party of the ICC, the court can claim jurisdiction over any war crimes, genocide, or crimes against humanity committed in Afghanistan after May 1, 2003.

In fact, the ICC has had a preliminary examination open in Afghanistan for more than 10 years to determine if there is a reasonable basis for a formal investigation.

But the government in Kabul has not asked for such an investigation, nor has the UN Security Council.

That means the only way for a formal probe to go ahead is for the ICC prosecutor to receive authorization from the ICC's pretrial chamber.

Bolton said the Trump administration objected to the idea that the ICC could have higher authority than the U.S. Constitution and U.S. sovereignty.

Bolton also vowed that Washington "will not cooperate with the ICC."

"We will provide no assistance to the ICC," Bolton said. "We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us."

Following Bolton's remarks, ICC spokesman Fadi El Abdallah told RFE/RL on September 11 that the ICC "as a court of law will continue to do its work undeterred" as an "independent and impartial institution backed by 123 countries."

Abdallah told RFE/RL those 123 countries "believe that the court is a key to ensure accountability for crimes that shock the consciousness of humanity."

What Is The Expected Outcome Of An ICC Investigation?

Alex Whiting, a Harvard Law School professor who worked in the ICC prosecutor's office in 2010-13, says the ICC has "extremely limited investigative powers and is almost entirely dependent on cooperation" from member states to gather information.

In his Just Security blog, Whiting says ICC investigators will receive "no cooperation from the Afghan government, the Taliban, or the United States."

Whiting also notes that the American Service-Members' Protect Act also prohibits U.S. officials from voluntarily cooperating. He predicts that if an Afghanistan investigation is approved by the ICC's pretrial chamber, "expect the investigation to last for years, with very uncertain results."

"While some alleged victims will be available to be interviewed in other locations, and some evidence of the alleged crimes in Afghanistan and the black sites has been developed and made available by other inquiries, there is no question that it will be extremely difficult for the ICC to develop evidence to prove culpability beyond a reasonable doubt."

Whiting says he also sees three outcomes stemming from Bolton's threats against ICC judges and prosecutors.

He predicts a greater willingness by the ICC's critics to spread disinformation about "the scope of the ICC prosecutor's discretion, the basis for the court's jurisdiction, and the definitions of crimes."

"The continued embrace, if not expansion, of such propaganda tactics to delegitimize judicial institutions can only further erode and undermine the rule of law at home and around the world," Whiting says.

He also predicts the current dispute will result in a far weaker ICC. "The risk is that U.S. pressure to de-fund the court or limit its activities could have real consequences this time with even friends of the court willing to sacrifice the institution to focus on other goals," Whiting says.

He also says that the Trump administration's turn against a legacy of supporting institutions to "achieve accountability for international crimes" is likely to remain in place "for many years to come."