While the relationship between the United States and the ICC has often been in flux, critical recent developments have significantly altered the landscape in which the United States must assess its options for engagement with the Court. The most obvious is the Prosecutor’s commencement of an investigation of the situation in Afghanistan, which could encompass the conduct of U.S. personnel (both in Afghanistan and on the territories of other ICC states parties if sufficiently connected with the conflict in Afghanistan). In addition, a Pre-Trial Chamber ruling in February 2021 about the Court’s jurisdiction over the “situation in Palestine” has cleared the way for an investigation that might encompass those responsible for settlements policy in the West Bank as well as allegations in connection with violence in Gaza.
There has also been significant progress at the Court regarding other countries that are generally aligned with U.S. interests. Besides the Ntaganda and Ongwen judgments, trials are underway against a member of an Islamic militia group for crimes committed in Mali and against two militia leaders in the Central African Republic. The Court has also commenced proceedings against the first suspect from the alliance of government forces and Janjaweed militia responsible for the majority of the atrocities in Darfur. And on January 23, 2021, the Court took custody of Mahamat Said Abdel Kani, a Séléka militia commander alleged to be responsible for crimes against humanity and war crimes in the Central African Republic. In each of these countries, U.S. policy has clearly emphasized the importance of accountability for atrocity crimes as part of its broader objectives.
There have been developments in other situations of interest as well. In October 2020, the Prosecutor declined to open an investigation into accusations against United Kingdom forces in Iraq, reasoning that despite the gravity of the alleged crimes, concerns over the United Kingdom’s domestic investigations, and the fact that no one was prosecuted, “on the basis of the information available, the Office could not conclude that there was or had been an intent by the UK authorities to shield persons from criminal responsibility.” In September 2020, the Office of the Prosecutor finally closed its preliminary examination of Israel’s actions in connection with the Gaza flotilla. Some cite the fact that the OTP took so many years to close these preliminary examinations as reasons to be skeptical of the Court, while others cite the eventual closure as evidence that the Court’s filtering system is working, even if slowly.
Meanwhile, at the end of 2020, the Prosecutor stated that she intended to open an investigation into crimes in Ukraine (which would likely include crimes committed by Russian forces and its proxies in Crimea and eastern Ukraine) and in Nigeria (which focuses on crimes committed by Boko Haram and its splinter groups, as well as by Nigerian Security Forces). The Prosecutor is also examining a request that the Court investigate crimes committed by the Maduro regime in Venezuela, based on a referral from Canada and five South American states (Argentina, Colombia, Chile, Paraguay, and Peru).
At the same time, the Court has experienced a number of setbacks, with just five convictions for core crimes in eighteen years of operation and a substantial number of cases (including high-profile prosecutions of current and formers heads of state) being dismissed under circumstances that raise questions about the Prosecution’s investigation and trial strategies (see Section on ICC Performance, Review, and Potential Reforms). The Court’s traditional supporters—sovereign and otherwise— have increasingly criticized the Court’s operations and strategic direction, including by expressing concern that the Court is spreading itself too thin and failing to deliver on its core mandate. This upswell of criticism led states parties in 2019 to institute the Independent Expert Review (IER) process, which is being implemented in parallel with other efforts initiated by member states to address other critical issues in the Court’s relations with states, including proposals that the Court needs to better prioritize the allocation of its limited resources to address the most important situations and cases and potentially reconsider the way in which complementarity operates. Many of these discussions echo concerns that the United States has raised over the years, particularly around the idea that the Court is taking on too much and is not focusing on the most acute situations of international concern.
All of these developments will bear on the next phase of the U.S.-ICC relationship. In particular, the decision to open an investigation of the situations in Afghanistan and Palestine frames the political context within which the new Administration will need to review its options. At the same time, the IER process creates an opening for U.S. engagement. The remainder of this Section will discuss these two situations of concern in greater depth as well as the way in which the IER process intersects with long-standing U.S. concerns vis-à-vis the Court.
- The “Situation in Afghanistan”
- The “Situation in Palestine”
- ICC Performance, Review, and Potential Reforms