The ICC’s Fundamental Design Flaws Have Only Become More Evident

In 2014, I argued in this publication that the ICC suffers from fundamental structural defects that have rendered it an obstacle to peace in most of the conflicts in which it has inserted itself, and that until those defects are corrected, the Court cannot expect and does not deserve US support.

Since then, there has been a growing recognition that the ICC is a broken institution in desperate need of repair.  “Reform” has become a watchword at the Court and among its supporters.  But the reforms under consideration are all akin to recommendations for improving the propulsion system of the Hindenburg: if adopted, it’s possible they will improve day-to-day operations, but they do not begin to address the fundamental design flaws that are conducing the institution toward spectacular failure.

I will not repeat the criticisms spelled out in my previous article, except to say that nothing has happened since 2014 to refute them, and even if all the reforms to the ICC now under consideration are adopted, the criticisms I expressed will remain valid.

What has happened since 2014 is that many other criticisms of the Court that I did not reach in my previous article have been vindicated, and arguments previously put forward by the Court’s supporters in defense of the institution have been refuted.  In particular, the long-running debate over whether the ICC is a threat to countries like the United States and Israel—nations that have not consented to the Court’s jurisdiction by ratifying the Rome Statute—has been decisively answered by the Court itself.

For more than two decades, critics of the Court warned that it inevitably would target the United States and Israel.  These warnings were ridiculed by the Court’s proponents as the paranoid delusions of nativists, of a piece with claims that the UN was secretly flying black helicopters over America.

ICC supporters insisted that the principle of complementarity embedded within the Rome Statute guaranteed that no American would ever be prosecuted by the Court.  They used terms like “inconceivable” to describe this risk, “automatic” to describe how complementarity would operate, and “powerless” to describe the Court’s ability to target Americans.  Accordingly, they dismissed measures like the American Servicemembers’ Protection Act as hysterical over-reactions to an imaginary threat.

It has now emerged, of course, that it was not the ICC’s critics who were deluded about the threat, but rather its supporters.  No serious observer today would use adjectives like those above to describe the protection afforded Americans by the principle of complementarity.

Why the ICC Prosecutor and Appeals Chamber would have chosen to prove the Court’s detractors right and its supporters wrong by authorizing an investigation into war crimes allegedly committed in Afghanistan by Americans and others is something of a mystery.  It’s not as if the ICC doesn’t already have a full plate, or has demonstrated the capacity to successfully manage the investigations it already has before it.  And, as has become characteristic of the ICC in conflict situations, the Court is pursuing its investigation over the objections of the government—Afghanistan—whose consent it ostensibly is relying on to conduct the investigation.

Certainly the ICC knows it is provoking a confrontation with the United States by initiating this investigation.  Indeed, it is widely assessed that the Appeals Chamber voted to authorize the investigation precisely in order to dispel perceptions that the Court was unwilling to confront the United States.

The most plausible explanation of the ICC’s action is that it is part of the Court’s response to the indisputable criticism that it has spent most of its existence meting out European-style justice to African defendants.  This critique been devastating to the ICC’s reputation in Africa.  So much so that the Court’s Western supporters had to mount a diplomatic campaign to head off a Kenyan-led effort to instigate a mass-defection from the Rome Statute by African governments.

The only long-term solution to the Court’s reputational problem in Africa is for it to identify some non-African defendants to bring to justice.  The ICC’s options for doing this are limited, however, as it currently has only four investigations underway outside of Africa.  Notably, all of them were commenced after African unhappiness with the Court began to manifest itself.  In addition to the Afghanistan investigation (requested by the Prosecutor in 2017 and authorized in 2020), the pending ICC investigations outside of Africa are:

• Georgia: In 2016, an investigation was authorized into crimes committed during the 2008 conflict between Russia and Georgia in South Ossetia.  This investigation is fraught with risk for the ICC, however.  It will look feckless if it only brings charges against Georgians, who after all were the victims of Russian aggression in that conflict.  But should it seek to prosecute Russian government or military officials, it will face an entirely different set of risks.  Russia has never ratified the Rome Statute, and has made clear its hostility to the ICC.  Vladimir Putin probably does not need the encouragement of a Hague Invasion Act in order to defend Russia’s interests should he deem them seriously threatened by the ICC.
• Bangladesh/Myanmar: In 2019, an investigation was authorized into Myanmar’s treatment of its Rohingya ethnic minority.  The Court’s jurisdictional hook is tenuous, however, given that Myanmar has not ratified the Rome Statute, and the government’s actions are taking place on Myanmar’s territory.  The Prosecutor argues that the fact that Rohingya individuals are being deported to Bangladesh—which is party to the Rome Statute—is sufficient to confer jurisdiction on the Court, but this claim is sure to be contested should charges ever be brought.
• State of Palestine: In 2015, the “State of Palestine” declared that it had ratified the Rome Statute, and in reliance on this, as well as a Pre-Trial Chamber ruling, the Prosecutor in March 2021 announced the opening of an investigation into the “situation in Palestine.”  For purposes of this investigation, “Palestine” is defined as the West Bank, Gaza, and East Jerusalem.  Although the Prosecutor found in preliminary examination a reasonable basis to believe crimes had been committed by both Israeli and Palestinian actors, the clear object of this investigation is to bring charges against Israelis–notwithstanding that Israel has not ratified the Rome Statute–in connection with Israel’s occupation of the West Bank and its episodic military engagements with Palestinian forces in Gaza.  The ICC’s jurisdiction in this case is on even shakier ground than in Myanmar, given that Palestine is not a member of the United Nations and is not recognized as a state by most Western governments, but these concerns were brushed aside by the ICC.

To be sure, the opening of an ICC investigation does not equate to the bringing of criminal charges, and therefore it remains possible that the Court ultimately will decide not to exercise the criminal jurisdiction it claims to have over potential defendants in these cases.  But political considerations suggest that it will be extremely difficult for the Court not to bring charges in at least some of these cases.

Should the ICC bring charges against Americans over US actions in Afghanistan, political confrontation with the United States will be assured.  There has been no indication that the Biden administration will depart from the policy of all previous US presidents to reject the ICC’s jurisdiction over Americans on grounds that the United States has not ratified the Rome Statute.  Further, implicit in any charges brought against Americans will be a finding by the Court that the investigations of US actions in Afghanistan undertaken during the Obama administration were essentially cover-ups—investigations that the United States was “unwilling or unable genuinely to carry out,” in ICC parlance.  That would be a most unfriendly accusation to level against an administration whose alumni populate the new Biden administration.

Should the ICC bring charges against Israelis—who, like Americans, hail from a country that has not ratified the Rome Statue—the political fallout in America will be almost as great.  Last year a bipartisan group of 69 Senators sent a letter castigating the ICC for taking up the Palestine case and affirming that “the United States should stand in full force against any biased investigation of Israel.”  In addition to asserting that the ICC has no standing to decide whether Palestine is a state and what its boundaries are, the letter complained that the ICC’s actions “would further hinder the path to peace.”

This final criticism tracks the principal argument of my previous article, which described the many cases in which the ICC’s intervention in ongoing conflicts has served primarily to impede prospects for peaceful settlement.  The last thing the world needs is more obstacles to peace in the Middle East.  Of course, achieving peace is completely beside the point to true believers in the ICC.  As one prominent NGO was unashamed to declare, “the prosecutor may not . . . decide not to go from investigation to trial . . . because of concerns regarding an ongoing peace process, because that would be contrary to the object and purpose of the Rome Statute.”

Where we are left, therefore, is that the ICC’s need to re-legitimize itself is driving what was supposed to be an apolitical instrument of justice to bring cases that will be detrimental not just to the United States, allies like Israel, and the Court itself, but also to world peace.  These can only be seen as manifestations of the kinds of fundamental design flaws discussed in my previous article, not unlike those that led the Hindenburg to its unhappy end.

Stephen Rademaker is a JINSA Gemunder Center Senior Advisor. He practices law at the Washington DC firm of Covington & Burling. During a 20-plus year career in government, he served, among other things, as Deputy Legal Adviser to the National Security Council, General Counsel of the Peace Corps, Chief Counsel to the Committee on Foreign Affairs of the House of Representatives, and Assistant Secretary of State responsible for arms control and nonproliferation matters.

Originally published in International Criminal Justice Today