Last week, it was reported that the US has denied visas to members of the International Criminal Court (ICC), which is investigating war crimes that are alleged to have been committed by the US armed forces and the CIA in Afghanistan. So, what does this mean for the ICC? This blog explores the extent to which the ICC has jurisdiction over the US, and considers where the ICC can go from here.

The ICC was established in 2002 by the Rome Statute, which governs the Court’s powers and jurisdiction. On becoming party to the Rome Statute, a country (‘State Party’) accepts the ICC’s jurisdiction with regard to four specific crimes - war crimes, crimes against humanity, genocide, and the crime of aggression. The ICC can investigate these crimes if they are alleged to have been committed either (1) by a national of a State Party, or (2) on the territory of a State Party. Countries that have not ratified the Rome Statute can agree to accept the ICC’s jurisdiction with respect to a specific investigation; however, this acceptance is ad-hoc and must be voluntary.

To date, the Statute has been ratified by 123 countries, including Afghanistan. The ICC therefore has jurisdiction to investigate crimes that were committed on Afghan territory after February 2003, when it became a State Party. So, even though the US is not a party to the Rome Statute, this does not, in theory, prevent the ICC from investigating the alleged crimes.

In practice, however, the position is different. Although the ICC can legitimately indict US officials for crimes committed on the territory of a State Party, the Court’s ability to do so will depend heavily on its ability to properly investigate the alleged crimes. In terms of investigation and prosecution, the Rome Statute imposes an obligation on State Parties to co-operate with the ICC. No such duty, however, exists in respect of non-State parties, meaning that the US is under no obligation to assist. And as the news reports suggest, not only is the US failing to assist the ICC, but it is actively obstructing its efforts by refusing visas for ICC staff, and claiming that the ICC is an “illegitimate court” which poses a threat…to American national sovereignty”. This is not the first time the US administration has expressed strident views on the topic. In September 2018, the US national security advisor, John Bolton, told the UN, “If the [ICC] comes after us, Israel, or other US allies we will not sit quietly”. In the same speech he threatened sanctions against the court and against any country that assisted any US focussed investigation.

So - what can the ICC do? In short, the answer is very little. Under the provisions of the Rome Statute, the Court is limited to relying on the co-operation of international organisations and other State Parties. Looking ahead, if the ICC does reach a point where it is in a position to make arrests, a judge of the ICC’s Pre-Trial Chamber can issue a warrant of arrest or summons to appear before the Court. However, since the ICC does not have its own police force, it would again be reliant on State co-operation to execute warrants and make arrests. Needless to say, the US is unlikely to co-operate, meaning that it would be down to other States Parties to effect an arrest, if and when the suspects set foot on State Party soil.

The US’s behaviour may ultimately mean that the ICC is unable to prosecute, but their unwillingness to co-operate also has the effect of raising suspicions and lending cogency to the criminal allegations. After all, if the US has nothing to hide, why behave so obstructively? And if the US is truly concerned about the ICC impinging on US national sovereignty, why not investigate the allegations under federal law?

Regrettably, the political nature of the ICC’s work will always remain a challenge for the Court, but it is hoped that the international community recognises this, and, as suggested in a previous blog, supports the Court’s work by bringing prosecutions for international crimes before their own courts.