Monkey Cage | Analysis
The International Criminal Court is set to investigate alleged U.S. war crimes in Afghanistan
The decision by the chief prosecutor of the International Criminal Court (ICC) to seek an investigation into alleged war crimes perpetrated by U.S. military forces and the CIA in Afghanistan has been widely described by some observers and legal scholars as a brave step toward global justice.
But as diplomats, advocates and interested observers gather at the Assembly of States Parties of the International Criminal Court in New York to assess the standing and future of the ICC, here’s the question many are pondering: Can the ICC survive its latest challenge?
The possible reasons behind the prosecutor’s decision to seek an investigation on the Afghanistan war have been detailed elsewhere. The reality is that there is every chance that the court’s investigation into Afghanistan will never result in a successful ICC prosecution of a U.S. official. While the United States may still cooperate with the ICC on cases that advance its interests, self-incriminating cooperation from the U.S. government regarding its own decisions and actions in Afghanistan won’t happen.
Without any cooperation from states to build cases and enforce arrest warrants, the ICC’s reputation as a criminal court would surely suffer. And Afghanistan is not the only tricky situation the ICC faces. The court’s ongoing investigation into the 2008 war between Georgia and Russia as well as its most recent intervention in Burundi also may get hung up for lack of cooperation from either Moscow or Bujumbura…
…Unsurprisingly, states such as Russia, China and the United States were less inclined to support the ICC because they could not directly control the court. During the George W. Bush administration, the United States passed legislation to prohibit any U.S. support to the ICC and authorized the government to use “any means necessary” to repatriate any American citizen detained by the court. The Bush administration also employed coercive diplomacy to pressure states into signing bilateral immunity agreements, stating that they would never surrender U.S. citizens to the ICC…