This Q&A addresses key questions regarding the International Criminal Court (ICC) and the relationship between the court and the United States.
The ICC is an independent judicial institution empowered to investigate and prosecute war crimes, crimes against humanity, genocide, and the crime of aggression. Its establishment in 2002 signaled the commitment of many countries to fight impunity for the worst international crimes. Currently, 123 countries are ICC members, giving the ICC authority, under its founding treaty, the Rome Statute, to investigate and prosecute crimes committed by their nationals or by anyone on their territory. As a matter of policy, the ICC prosecutor gives priority to cases against individuals who it determines are most responsible for the crimes under the court’s jurisdiction, regardless of their official position.
The court has been in operation since 2003. It has opened more than two dozen cases based on investigations in 11 countries, most of which are ongoing. On March 5, 2020, the ICC appeals chamber authorized the court’s prosecutor to open an investigation in Afghanistan, which could include alleged crimes committed by the Taliban, Afghan National Security Forces, and United States military and Central Intelligence Agency (CIA) personnel. The authorities in Afghanistan have asked the ICC prosecutor to defer her investigation, asserting that they can conduct credible national proceedings, and the matter remains under consideration. Based on our research in the Afghan justice system, Human Rights Watch strongly doubts the Afghan government’s capacity and willingness to bring alleged perpetrators to justice.
The ICC prosecutor is considering whether investigations are needed in another seven countries and has concluded there is a basis to proceed with an investigation into alleged serious crimes committed in Palestine, but has requested a ruling from the court’s judges on the scope of the ICC’s territorial jurisdiction.
The US is not a state party to the Rome Statute. The US participated in the negotiations that led to the creation of the court. However, in 1998 the US was one of only seven countries – along with China, Iraq, Israel, Libya, Qatar, and Yemen – that voted against the Rome Statute. US President Bill Clinton signed the Rome Statute in 2000 but did not submit the treaty to the Senate for ratification. In 2002, President George W. Bush effectively “unsigned” the treaty, sending a note to the United Nations secretary-general that the US no longer intended to ratify the treaty and that it did not have any obligations toward it. However, since then, US relations with the court have been complicated but often positive (see question 7 below).
The ICC is designed to be an independent permanent tribunal that respects the highest standards of justice. The Rome Statute incorporates international fair trial standards to preserve a defendant’s due process rights, including: presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; right to an appeal; and protection against double jeopardy.
Under international law, states have a responsibility to investigate and appropriately prosecute (or extradite for prosecution) suspected perpetrators of genocide, war crimes, crimes against humanity, and other international crimes. The ICC does not shift this responsibility. It is a court of last resort. Under what is known as the “principle of complementarity,” the ICC may only exercise its jurisdiction when a country is either unwilling or genuinely unable to investigate and prosecute these grave crimes.
Even after an investigation is opened, there are opportunities for states and individual defendants to challenge the lawfulness of cases before the court based on the existence of national proceedings.
There are limited situations in which the ICC has jurisdiction over the nationals of countries, such as the US, that have not joined the Rome Statute.
This includes when a citizen of a non-member country commits war crimes, crimes against humanity, and genocide on the territory of an ICC member country. That’s why US citizens may be subject to the court’s jurisdiction as it investigates alleged grave crimes that took place in Afghanistan, which is a state party, or in Poland, Lithuania, and Romania, which are also states parties.
There is nothing unusual in this. US citizens who commit crimes abroad are already subject to the jurisdiction of foreign courts. This is a basic and well established principle of international law. Countries that ratify the Rome Statute are simply delegating their authority to prosecute certain grave crimes committed on their territory to an international court.
By providing accountability for war crimes, the ICC promotes respect for the laws of war, which protect civilians as well as soldiers.
With respect to Afghanistan, the parties to the armed conflict in the country have committed numerous violations of international humanitarian law, or the laws of war. The Taliban and other insurgent groups have committed targeted and indiscriminate attacks on civilians that have caused thousands of casualties. Afghan security forces and pro-government militias have committed torture, rape, enforced disappearances, and extrajudicial killings. The US military, Central Intelligence Agency (CIA), and other foreign forces have also committed serious abuses, particularly against people in custody.
The US has conducted some investigations into alleged abuses by US personnel in Afghanistan, but they were limited in scope. In 2009, the US Department of Justice opened an investigation into 101 cases of alleged detainee abuse by the CIA, including the cases of two detainees who died in CIA custody, but no charges were brought. Human Rights Watch found no evidence that the investigators interviewed any victims of CIA torture. Moreover, the investigation was limited to abuses that went beyond the interrogation methods authorized by the Justice Department. Many of the authorized techniques were abusive – some clearly amounting to torture – and should have been included. A 2014 report by the US Senate Intelligence Committee concluded that the CIA covered up its crimes, including by making false claims to the Justice Department. The 6,700-page Senate report remains classified, but a redacted version of the 525-page summary shows that abusive CIA interrogation methods were far more brutal, systematic, and widespread than previously reported.
It is harder to evaluate the extent to which torture by the US military in Afghanistan has been investigated and prosecuted. In 2015, the United States reported to the UN Committee Against Torture that the armed forces had begun 70 investigations into detainee abuse that resulted in trial by courts-martial, but no time period was provided, and no further information was publicly available.
In the early years of the ICC, the George W. Bush administration led a hostile campaign against the court. For instance, the Bush administration pressured governments around the world to enter into bilateral agreements requiring them not to surrender US nationals to the ICC. But these efforts did little more than erode US credibility on international justice and gradually gave way to a more supportive US posture, starting in 2005. The US did not veto a UN Security Council request to the ICC prosecutor to investigate crimes in Darfur, Sudan in 2005 and it voted for the UN Security Council referral of the situation in Libya to the court in 2011.
US support was critical in the transfer to the court of ICC suspects Bosco Ntaganda, a Congolese rebel leader, in 2012 and Dominic Ongwen, a Lord’s Resistance Army commander, in 2015. In 2013, the US Congress expanded its existing war crimes rewards program to provide rewards to people providing information to facilitate the arrest of foreign individuals wanted by any international court or tribunal, including the ICC.
Under President Donald Trump’s administration, the US government has said that it will not cooperate with the ICC and has threatened retaliatory steps against ICC staff and member countries should the court investigate US or allied country citizens. Then National Security Adviser John Bolton first announced this approach in September 2018. Two weeks later, President Trump addressed the UN General Assembly stating that the “United States will provide no support or recognition to the International Criminal Court. As far as America is concerned the ICC has no jurisdiction, no legitimacy, and no authority.”
On March 15, 2019, US Secretary of State Mike Pompeo announced that the US would impose visa bans on ICC officials involved in the court’s potential investigation of US citizens for alleged crimes in Afghanistan. He indicated the same policy may be used to deter ICC efforts to investigate nationals of allied countries, including Israelis, and stated that the US would be prepared to take further actions, including economic sanctions, “if the ICC does not change its course.” The Trump administration confirmed in early April 2019 that it had revoked ICC Prosecutor Fatou Bensouda’s visa.
Pompeo publicly threatened two staff members of the ICC on March 17, 2020, naming them and stating that he was “considering what the United States’ next steps ought to be with respect to these individuals and all those who are putting Americans at risk.” Pompeo said he wanted to identify people responsible for the investigation – and their family members – and implied he could seek actions against them.
On May 15, 2020, Pompeo vowed to “exact consequences” if the ICC “continues down its current course” – that is, if the court moves forward with a Palestine investigation.
Trump issued a sweeping executive order on June 11, 2020 authorizing asset freezes and family entry bans that could be imposed against certain ICC officials. The administration acted on September 2 to designate Fatou Bensouda, the ICC prosecutor, and Phakiso Mochochoko, the head of the Office of the Prosecutor’s Jurisdiction, Complementarity, and Cooperation Division, for sanctions. The executive order also provides for the same sanctions with regard to those who assist certain court investigations, risking a broad chilling effect on cooperation with the ICC.
Since January 2015, the ICC prosecutor has been examining alleged serious crimes committed in Palestine since June 13, 2014, including war crimes and crimes against humanity, in what is known as a “preliminary examination.” On May 22, 2018, Palestine submitted a “referral” requesting the prosecutor investigate crimes under the ICC’s jurisdiction.
In December 2019, Bensouda the ICC prosecutor, concluded her preliminary inquiry, determining that “all the statutory criteria” to proceed with a formal investigation have been met. However, she then sought a ruling from the court’s judges on the scope of the ICC’s territorial jurisdiction. The matter is pending before the court.
Given strong evidence that serious crimes have been committed in Palestine since 2014, including the transfer of Israeli civilians into the occupied West Bank and alleged war crimes committed during the 2014 hostilities in Gaza by the Israeli military and Palestinian armed groups, Human Rights Watch has called on the ICC prosecutor to open a formal investigation of serious international crimes committed in Palestine by Israelis and Palestinians.
Numerous safeguards are set out in the Rome Statute to prevent frivolous or politically motivated cases. Unless there is a referral from a state or the UN Security Council, the ICC prosecutor is not able to begin an investigation on her own initiative; it requires authorization from a pre-trial chamber of three judges. In all investigations, the prosecutor needs to apply to the court’s judges for arrest warrants and to confirm charges prior to trial.
The focus of ICC investigations and prosecutions in Africa in its early years have led to criticisms of bias by some African leaders, although attacks on the ICC emanating from Africa have ebbed in recent years. While nearly all of the court’s first investigations were in Africa, the majority were initiated following a request from the country where the crimes were committed or a UN Security Council referral. Still, international justice has been applied unevenly: powerful countries and their allies have been able to evade the reach of justice when serious crimes are committed on their territories by not joining the ICC and by blocking referrals by the Security Council.
The ICC has the backing of established and emerging democracies around the world. Its governing body, the Assembly of States Parties (ASP), currently consists of 123 countries that have ratified the Rome Statute: 33 from the Africa region, 19 from the Asia-Pacific region, 18 from Eastern Europe, 28 from the Latin American and Caribbean region, and 25 from Western Europe and North America.
The prosecutor and the judges are accountable to the ASP. The ASP has the authority to remove them from office in the event that they abuse their powers. The ASP has also established an Independent Oversight Mechanism. Among other functions, the oversight mechanism can conduct investigations of alleged misconduct or fraud concerning any elected court official or court staff.
Burundi withdrew from the ICC effective October 2017, and the Philippines’ notice of withdrawal came into effect in March 2019. An effort by the government of Kenya – at a time when its president and deputy president were facing charges before the court – to lead a mass withdrawal of African states from the treaty failed to materialize.
The ICC has so far opened more than two dozen cases, and pre-trial or trial proceedings are ongoing in three cases. However, trials for war crimes and crimes against humanity have only been completed in a handful of cases, with four people convicted and four others acquitted. Some other cases have been dismissed for lack of evidence. Court officials have made a number of missteps and stronger investigations by the ICC prosecutor, better choices in the selection of cases, more efficient proceedings, and more effective outreach with victims and affected communities are needed. The court’s leadership took an important step forward in 2019, requesting an independent expert review of its performance. The review, conducted by a panel of nine experts, is expected to be completed by the end of September 2020.
The court also faces steep challenges in carrying out its mandate. Without a police force, it relies on states for cooperation in arrests, and that cooperation has been inadequate. Arrest warrants remain outstanding against 14 individuals. ICC member states have also held back on necessary budget increases even as the court’s workload has grown.
The court certainly needs to continue to learn lessons, correct mistakes, and improve its work. But an effective ICC backed by the strong support of the international community is needed more than ever to send the message that impunity for mass atrocities will not be tolerated.