Daniel M. Gerstein is a senior policy researcher at the RAND Corporation and an adjunct professor at American University. He was the undersecretary (acting) and deputy undersecretary in the Science and Technology Directorate of the Department of Homeland Security from 2011-14.

  • International Criminal Court’s focus on US forces could have significant effect, On: Sun, 26 Nov 2017

  • Regional action needed to prevent Syrian chemical attacks, On: Sun, 07 May 2017

  • International Criminal Court’s focus on US forces could have significant effect

    Attempted prosecution of US personnel could inflame the US-ICC relationship just when the United States indicated a willingness to support the court.


    2017/11/26 Issue: 133 Page: 17



    Fatou Bensouda, the chief prosecutor of the International Crimi­nal Court (ICC), has requested authorisa­tion to begin formal investigations into possible war crimes committed in Afghanistan since 2003. While the scope of the inquiry has not been defined, a previous report sug­gested US forces and intelligence personnel may have been involved in crimes, including torture, in Afghanistan.

    An investigation and possible charges could have a chilling effect on the willingness of countries, including the United States, to in­tervene in complex humanitarian and capacity-building operations. It might also erode support for the ICC.

    The US State Department strong­ly opposes an ICC investigation into US conduct in Afghanistan, calling the potential inquiry un­warranted and unjustified. Some question if the accusations rise to the level of egregiousness that nor­mally applies in ICC cases.

    The ICC was established in 2002 by the 1998 Rome Statute, which has 139 signatories but only 124 parties. The court considers four categories of crimes: Genocide, crimes against humanity, crimes of aggression and war crimes.

    Before the ICC was established, alleged crimes were investigated by special tribunals. For example, the Nuremberg trials examined Nazi war crimes. More recently, the UN’s International Criminal Tribunal for the former Yugosla­via dealt with war crimes in the Balkans in the 1990s.

    Several countries have ex­pressed concerns about the ICC mandate when it could conflict with national laws or prompt claims of unfairness. The United States signed the Rome Statute but is not a party to the agreement and has consistently stated reserva­tions about the court.

    The proposed investigation into possible Afghanistan war crimes is likely to consider atrocities committed by the Taliban and its affiliated Haqqani network, the conduct of Afghan government security forces and intelligence service personnel and torture and ill-treatment by US and other NATO military forces and intelli­gence organisations.

    Pentagon spokesman Eric Pahon said an investigation would not serve the “interests of either peace or justice in Afghanistan.” The United States has investigated and made public reports on allegations of abuse, including a 2005 report by the US Army’s Criminal Inves­tigation Command, which recom­mended charging 27 officers and enlisted personnel with criminal offences. The investigations re­sulted in wholesale change to de­tention conditions and improved transparency and openness in the administrative review process.

    The ICC’s actions could also be significant in another way, how­ever. They could signal the intent to pursue other prosecutions, such as alleged misconduct of US and NATO forces in Iraq. These would include the Abu Ghraib prisoner abuse scandal, whose perpetrators have already been held account­able by the US authorities.

    Attempted prosecution of US personnel could inflame the US-ICC relationship just when the United States indicated a willing­ness to support the court. The US commitment to assist in the arrest of Joseph Kony and other Ugandan Lord’s Resistance Army rebel forc­es demonstrated the possibility of a new era of mutually beneficial collaboration.

    The ICC does not have arrest powers or enforcement capacity to take alleged war criminals to The Hague for trial and relies on na­tional willingness and capabilities to support its mission. So, creating a rift with the United States seems unwise.

    Finally, the United States has consistently indicated a preference for national prosecution in cases of misconduct by its forces and it has pursued this path in Afghanistan and Iraq.

    A major sticking point for the United States regarding the ICC has historically been the prospect of unsealed indictments being issued and enforced against US military forces or government personnel as they travel overseas in the performance of their duties. While the United States is not a party to the treaty, actions taken within a third-party country could fall under the ICC’s jurisdiction if referred by that country or by the UN Security Council.

    Many human rights organisa­tions applauded the expansion of the ICC mission beyond Africa, which has been the object of the previous nine indictments to be issued by the court. Opening investigations into offences in Afghanistan could directly answer critics’ concerns that the court has a pro-Western bias. However, implicating US personnel may do more harm than good.

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