By: Leila Sadat
On April 19, 2016 the International Criminal Court dedicated its new permanent premises. I had the privilege to attend as one of only a handful of Americans present, only one of whom (Todd F. Buchwald, Special Coordinator of the Office of Global Criminal Justice) was present in an official capacity.
The new building is just beautiful, and the ceremony was both moving and impressive, with speeches from UN Secretary General Ban Ki Moon, President of the Court, Judge Silvia de Gurmendi, Assembly of States Parties President Sang-Hyun Song and, representing civil society, Bill Pace, Convener of the NGO Coalition for the International Criminal Court. The dedication of the Court’s new permanent premises offered an opportunity to take stock of what has been achieved thus far, as well as to reflect upon the challenges that face this new international institution, particularly its struggle to achieve universal ratification and support from the major powers. The ICC currently has nine situations under investigation, ten preliminary investigations, and eleven ongoing cases in front of the court. In total, there have been 23 cases, some with more than one suspect, and three guilty verdicts.
The United States is not an ICC State Party and has been maligned by members of both major political parties. Former U.S. Ambassador for War Crimes David Scheffer signed the Rome Statute for President Clinton on December 31, 2000, however, that signature was “nullified” on May 6, 2002 during a campaign waged against the Court during the first term of George W. Bush’s Administration that involved the negotiation of Immunity Agreements between the U.S. government and more than 100 other countries and the adoption of U.S. federal legislation targeting the Court. The U.S. position toward the Court softened during President Bush’s second term, and this general easing of hostilities continued with the election of Barack Obama in 2008. The Obama Administration began actively participating in meetings of the ICC Assembly of States Parties and engaging and cooperating with the Court to a significant degree in 2009. Nevertheless, it has not proposed joining the Court, or undoing the 2002 nullification of the signature, although it has increased the focus on atrocity prevention.
Sometimes the United States is supportive of the Court’s actions against non-U.S. persons if it perceives this support to be in the U.S. national interest or strong civil society coalitions supporting U.S. action (as in the case of Darfur) emerge. At the same time, there are tremendous political and legal barriers to accountability for the commission of ICC crimes by U.S. persons. Accountability for alleged criminal violations of the laws of war and the torture convention committed following the invasion of Afghanistan in 2001 and Iraq in 2003 has been virtually non-existent, with only a handful of criminal prosecutions brought with respect to any of these allegations, and the cases that have been brought have generally pursued only low-level individuals.i Because some of the countries that have been the situs of U.S. military activities are ICC Statute parties, the Court could potentially have jurisdiction over the actions of U.S. persons for the commission of ICC crimes abroad, particularly if the United States cannot either for political or legal reasons investigate or prosecute those crimes itself. For this reason, the United States continues to have an uneasy relationship with the International Criminal Court and is likely to do so for some time.
i Only around a dozen soldiers were convicted of charges in relation to Abu Ghraib, and the Department of Defense absolved all senior U.S. military officials of responsibility, John Hagan et al., Iraq and the Crimes of Aggressive War 150, 79 (2015). The most severe sentence was handed down to Specialist Charles Graner, whose 10 year prison term for his role in the abuse was upheld by the United States Court of Appeals for the Armed Forces, United States v. Graner, 69 M.J. 104 (C.A.A.F. 2010).