Has the ICC’s American Quest Reached a Dead End?

The stand-off between the United States and the International Criminal Court (“ICC”) has now persisted for over two decades. This rift has only grown with time, especially recently with the Appeals Chamber overturning the Pre-Trial Chamber’s decision, allowing the Office of the Prosecutor (“OTP”) to conduct an investigation into alleged international crimes committed by US nationals in Afghanistan and other Eastern European countries. 

The judgment was not received well in the US and the Secretary of State, Mike Pompeo, publicly questioned the legitimacy of ICC by stating it to be “an unaccountable political institution, masquerading as a legal body.” In strong vehemence to the judgment, an executive order was also passed, according to which, economic sanctions have been imposed on ICC officials. All these attempts by the USA essentially aim at blocking any meaningful investigation by the OTP.

The OTP first initiated a preliminary investigation into the crimes committed in Afghanistan in 2006. Since then, the process has been slow and cumbersome with only limited success. However, now with the Appeals Chamber decision, the ICC has reached a critical point in its American quest. This post deals with the ramifications of this decision and analyses USA’s obligations under international law to cooperate with the OTP while they conduct their investigations. The paradoxical nature of this process is contained in the contesting limbs of the idea of an investigation – without which there cannot exist a case, but the conduct of a full and fair investigation is largely contingent on state cooperation.

The Importance of State Cooperation for Enforcement of Jurisdiction

As per Article 1 of the Rome Statute, the ICC’s jurisdiction is based on the principle of complementarity. Further, under Article 17, jurisdiction is applicable only if a state is unwilling and unable to prosecute the accused or under Article 12(2) when a state submits to the jurisdiction of the ICC. After passing the test of complementarity, the ICC has jurisdiction over all crimes committed by individuals of a member-state and also over crimes committed within the territory of member-states by nationals of a non-member state.

In the current case, the crimes were committed in Afghanistan and other Eastern European countries (Poland, Lithuania, and Romania), all of which are parties to the Rome Statute. No prosecution against the accused had been initiated thus giving the ICC jurisdiction over the matter, even though the accused are nationals of a non-member state. This jurisdictional issue has been conclusively decided by the Appeals Chamber in favour of the ICC.

However, in order to set the international criminal justice system rolling and exercise its jurisdiction, the ICC has to issue arrest warrants, seizure warrants, execute witness protection measures and gather evidence through site investigation and depositions. The ICC does not have its own enforcement mechanism in the sense that it does not have its own police force. Even the OTP has limited resources, making it impossible for the OTP to engage in the field-work. To this extent, State cooperation becomes key. Through the intervention of State authority, evidence can be easily collected, arrest warrants can be executed and key witnesses can be protected. The effective functioning of ICC therefore depends upon international cooperation and judicial assistance of States. However, the obligation to cooperate has been imposed only on member-states and in other instances the specific consent of the non-member-state is a prerequisite. This flows from Articles 24 and 35 of the Vienna Convention on the Law of Treaties, 1969. 

In this case, the accused, including the members of the Central Investigative Authority (“CIA”), reside in the USA. To make arrests, conduct investigations on American soil and ensure transfer of the accused for the trial, the ICC will have to rely on the executive and judicial assistance of the USA. As a non-member state, the USA is not obliged to provide any such assistance to the ICC. The gravity of the issue of non-cooperation is evidenced from the past failure of multiple states in arresting Omar al-Bashir as requested by the ICC. Therefore, despite the wide jurisdiction of the ICC, in reality, the enforcement of this jurisdiction becomes difficult due to the lack of obligations over non-member states to cooperate and assist the ICC or the OTP.

Conceptualising US Cooperation 

Although the US was instrumental in the formulation of the Rome Statute, it declined to sign the treaty owing to certain differences as to some key provisions. Since the USA is a non-member state, it is generally not under any obligation to cooperate with the mandate of the ICC, but may be required to cooperate under the following two scenarios.

First, Article 87(5) of the Rome Statute provides for the possibility of co-operation on part of non-member states through an ad hoc agreement or arrangement with the non-member state with respect to a particular matter. However, the US has been quite vocal in discrediting the legitimacy of the ICC. To prevent the OTP from conducting investigations on American soil, the Government has imposed significant economic and civil sanctions which prohibit the OTP from entering into the USA and block all assets that the OTP currently owns in the USA. Therefore, there lies no possibility of any arrangement or agreement which obliges the USA to co-operate with respect to investigations for the alleged crimes committed in Afghanistan.

Second, the United Nations Security Council (“UNSC”) may pass a resolution imposing mandatory cooperation obligation on any UN member state, even if such a member state is not party to the Rome Statute. However, such extraordinary power mandating state cooperation only exists in theory. The US is a permanent member of the UNSC and has special veto powers. This means that the UNSC will never be able to pass a resolution to ensure cooperation on part of the USA, since the USA has outright rejected ICC’s jurisdiction over its nationals. Further, drawing from past practice in Nicaragua where the US was held to be in violation of the principle of non-intervention for supporting a rebel group and mining Nicaragua’s harbours, the US vetoed a UNSC resolution seeking its compliance with the judgment of the International Court of Justice. 

In case the US refuses to enter into an arrangement with the ICC and/or no resolution mandating cooperation on part of the USA is passed by the UNSC, an alternative that exists is for the OTP to conduct investigations proprio motu under Article 15 of the Rome Statute. Under this Article, however, the powers of the OTP are limited. Since the obligation of co-operation is limited to only member-states, the OTP will have to conduct investigations in Afghanistan and the other Eastern European countries. However, with little means to conduct any thorough investigation and even fewer means to execute any orders for the arrest, seizure, protection of any individual, etc. any investigation conducted is bound to prove inadequate. Therefore, as per the provisions of the Rome Statute, the possibilities of a thorough investigation are dim. Even if the OTP were to initiate investigations on its own accord, it will inevitably cause severe strain on its resources.

The Way Forward

To put into context the entire accusation that the OTP has brought against the USA nationals for commission of international crimes in Afghanistan, one must keep in mind the successful negotiations between the USA, Taliban and Afghanistan Government. Now that the conflict in the region is settling, does the investigation serve any purpose? The answer to this is two-fold. Firstly, although such serious crimes should ideally be prosecuted, the limited resources available with the ICC and the fact that the investigations are ongoing in the backdrop of a relatively peaceful situation in the region make it imprudent for the ICC to continue with an investigation which would be perfunctory in the absence of cooperation by the USA. Instead, the ICC should urge its 123 strong member states, to undertake diplomatic sanctions or any other measure deemed necessary in order to deter the USA from repeatedly blocking effective investigation into serious war crimes. 

Secondly, as demonstrated earlier in this post, the current framework of the Rome Statute is not favourable while investigating crimes committed by individuals of non-member states. Measures must be undertaken to impose obligations to cooperate on the non-member states where the accused resides by including the same as part of one’s obligation towards customary international humanitarian law, as under the Geneva Convention. This would reinstate the trust of the member-states in the authority of ICC as the primary institution in prosecuting international crimes. Further it would virtually bring everyone within the ambit of the Rome Statute and, in turn, help put an end to impunity. 

Divij Jain is a third year B.A., LL.B (Hons.) student at Maharashtra National Law University, Mumbai.

Image: Reuters/Getty/Fortune.

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