Why the case against the International Criminal Court (ICC) is the stronger one

In the American Bar Association (ABA) Journal, Kristen Smith argues “The case for the International Criminal Court: Why it deserves our support.”  She highlights the merits of the ICC, and while she does note some flaws, Smith misses the key civil liberties issues that makes ratification unsupportable, at least insofar as the U.S. is concerned.

The ICC began with the best of intentions– and good background on it is found here.  Unfortunately, over time the ICC has had a miserable record in terms of holding people accountable.  In more than 17 years of existence – and despite the expenditure of well over one billion dollars – the Washington Post reported last year that the ICC has secured just “two convictions and one guilty plea.”  Even Human Rights Watch, a strong ICC advocate, very recently conceded that “performance gaps due to various factors have become very evident, underscoring the need for changes in policy, practice, and state support” related to the ICC.”

From an American perspective, the ICC has not been able to shake the long-stated concerns that it would lead to politically-motivated cases, and infringe upon U.S. sovereignty – issues Secretary Pompeo reiterated recently.  The U.S. is not, however, alone in its criticism.  The Council on Foreign Relations noted just last May that “[s]everal major powers echo U.S. complaints. China and India, in abstaining from the court, argue that it would infringe on their sovereignty.”

Some critics also see the ICC as biased against Africans, while others say the “ICC sadly reinforces Western perspectives and standpoints as universal maxims valid for all people and all nations, and re-enacts racialised metaphors of savages, victims and saviours in the name of truth and justice.”

There is, however, another perhaps ever greater concern: ICC procedures do not meet the standards of the U.S. criminal justice system.  There is, for example, no jury of one’s peers; indeed, no juries at all.  Decisions are made solely by judges, the qualifications of whom have been severely criticized.

Additionally, ICC trials admit hearsay and other evidence that would be barred in U.S. courts.  Even its advocates admit that “the admissibility threshold in international tribunals is generally low relative to that in common law countries like the United States.”  There is also an absence of some of the bedrock principles of American criminal justice jurisprudence.  For example, there is no Sixth Amendment right to confrontation within the meaning of Crawford v. Washington.  Perhaps most shocking from an American perspective is that prosecutors can – and do – appeal trial acquittals.

(U.S. Army photo by Zoe Garbarino/Released)

All of this ought to matter for a nation dependent upon an All-Volunteer Force (AVF).  Is it wise, or – more to the point – right to tell the less than .04% of Americans who have stepped up to serve their country in uniform that they will also be subject to a criminal court system that fails to meet the basic groundwork of the Constitution that they are being asked to go into harms’ way to support and defend?

If U.S. troops are accused of wrongdoing, shouldn’t they – of all people – be afforded a trial that meets American standards?

Sure, there are instances where negotiated Status of Forces Agreements permit foreign courts to take jurisdiction over U.S. personnel in limited circumstances, but these are in no way akin to the sort of expansive jurisdiction contemplated by the ICC’s Rome Statute.  Moreover, Department of Defense policy mandates that such agreements “protect, to the maximum extent possible, the rights of United States personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons.”  As one scholar puts it:

“Implicit in this statement is the desire to protect U.S. persons’ due process rights, which might be infringed if they are subject to trial in an unfair judicial system. In addition, this policy reflects the goal of retaining the right to enforce the military’s own disciplinary standards as part of the chain of command. All told, and in principle, DOD will not send military personnel abroad without sufficient status protections such as those found in…SOFAs.”

SOFAs can vary from country to country, but typically the U.S. will not agree to the exercise of foreign jurisdiction in combat zones or with respect to combatant activity – exactly the circumstances which form the centerpiece of the ICC’s focus.

“Sufficient status protections” for U.S. troops are important not just tactically, but strategically.  We can’t forget that the AVF is already struggling to fill the ranks because of the booming economy.  Additionally, studies show that the “percentage of young people who say they will likely join the military is at 11 percent ― the lowest point in nearly 10 years.”  How much smaller would that pool shrink if potential recruits were told it was possible that they would be handed over to a foreign criminal court system?

It may be true that the likelihood of an American servicemember being hauled before the ICC for alleged war crimes is small, but no one can say it is impossible.  The ICC recently announced that it would allow the prosecutor to appeal a judicial rejection of authority to investigate the Afghanistan conflict, including activities of U.S. troops.   Clearly, the prosecutor is taking aim at Americans: Reuters reports that “[p]rosecutors have cited preliminary evidence suggesting that international forces in Afghanistan, including employees of the U.S. Central Intelligence Agency, mentally and physically abused detainees, which could constitute a war crime.”

I believe that while Americans would want wrongdoers to be held accountable, that’s not the same thing as saying that accountability should be doled out by a foreign court.  A 2019 poll that presented arguments favorable to the ICC but did not fully describe the risks to U.S. troops still found that less than half of Americans “agreed that the U.S. should join the ICC.”  It is wholly predictable that the more Americans learn about the ICC, the more likely it will be that they will not want members of the armed forces – the institution in U.S. society about which the citizenry has the most favorable views – turned over to foreign judges, and would insist that the young people the nation sends in harms’ way have the right to be judged by an American court.

Congress was cognizant of the many flaws in the ICC when it passed the American Servicemembers Protection Act (ASPA) in 2002, and it is very much worth reading its findings found here.  Among other things, it expressed concern about the ICC purporting to extend jurisdiction over nations not a party to its treaty.

Importantly, Congress also concluded that:

(7) Any American prosecuted by the International Criminal Court will, under the Rome Statute, be denied procedural protections to which all Americans are entitled under the Bill of Rights to the United States Constitution, such as the right to trial by jury. (Emphasis added.)

(8) Members of the Armed Forces of the United States should be free from the risk of prosecution by the International Criminal Court, especially when they are stationed or deployed around the world to protect the vital national interests of the United States. The United States Government has an obligation to protect the members of its Armed Forces, to the maximum extent possible, against criminal prosecutions carried out by the International Criminal Court. (Emphasis added.)

Consequently, Congress prohibited certain interactions with the ICC and even went so far as to authorize the President “to use all means necessary and appropriate to bring about the release of any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”

Of course, this does not mean the U.S. does not support pursuing international criminals.  Kiel Ireland and Julian Bava of the Stanford Law School: Law and Policy Lab point out that the final section of ASPA, 22 U.S.C. §7433 [known as the “Dodd Amendment”], clarifies that nothing in ASPA “shall prohibit the United States from rendering assistance to international efforts to bring to justice . . . foreign nationals accused of genocide, war crimes and crimes against humanity.”

Accordingly, the “Dodd Amendment thus ensures that the government cannot support the kinds of cases Congress feared—for example, prosecutions of U.S. nationals or prosecutions for the crime of aggression.”  At the same time, it creates “four potential methods of cooperating with the ICC: providing funding, providing manpower, sharing intelligence and providing witness-protection services.”

Whatever may be the logic of those exceptions, the fact remains that anyone who truly believes in the concept of criminal justice as based in the Constitution should not want any American – and particularly those serving in the military – to be unnecessarily subject to a system that does not live up to that standard.  That fact alone makes that case against the U.S. ratifying the ICC statute the much stronger one.

Still, as we like to say on Lawfire^®, gather the facts, assess the law and the arguments, and decide for yourself!