In the United States and the wider world, seismic discussions are raging about the need to see justice done when fundamental human rights are violated. This is no time for any government to exert coercion against an international court that was created to do justice when there is nowhere else to turn for it.
But last week, in the latest of an escalating series of attacks against the International Criminal Court, President Trump’s administration announced new acts of economic pressure against the court. Why? Simply for doing its work by seeking to investigate allegations of war crimes committed in Afghanistan. Allies of America, human rights organizations and bar associations — notably the European Union, France, Germany and the American Bar Association — have expressed deep concern.
The bullying tactic has been defended as an effort to prevent American soldiers from being “hauled” up before the I.C.C., arguing that America is able to prosecute its own military and intelligence personnel if they commit crimes abroad.
These acts of coercion and their premises are wrong. The I.C.C. is not intent on “hauling” Americans up to trial before it. The real issue is whether investigations — and any resulting prosecution — may be conducted to examine allegations of violations committed mostly in Afghanistan by the Taliban, Afghan security personnel and, yes, United States security personnel while stationed in Afghanistan.
These investigations will focus only on events in the territory of a member state that has joined the I.C.C. treaty, the Rome Statute. Unlike Afghanistan, the United States has not become a member state — so no I.C.C. investigation will be conducted on American soil without its consent. And the I.C.C. does not try countries.
I must emphasize that the I.C.C. is only a court of last resort. It is only when questions of accountability for international crimes have remained unaddressed that international law allows the I.C.C. to intervene and ask those questions for the sake of victims. And in the case of Afghanistan, the I.C.C. has no specific desire to prosecute Americans. Instead, its concern is that there are allegations of gross human rights violations in Afghanistan that victims complain have waited far too long without investigation or prosecution.
So now the I.C.C. is insisting that justice based on evidence must be pursued by somebody, somewhere — if not in the United States or Afghanistan, then at the I.C.C. Such justice will have to be based on concrete evidence, if discovered, rather than merely lingering suspicions and allegations. That is the very purpose of investigations.
No one disputes that the American justice system is among the strongest in the world. But it needs to be put to use in the quest for justice for victims of alleged violations in Afghanistan.
It is not impressive that the American leadership insists that these questions of justice dare not be asked, if they might implicate Americans in allegations of wrongdoing abroad. It is enough that senior American officials, well attuned to the old-fashioned American sense of justice, readily accept that not even American soldiers are immune from accountability when they are suspected of committing crimes in foreign countries.
While in North Africa during World War II, Gen. George S. Patton Jr. wrote in a diary that he had told the Grand Vizier of Morocco ‘‘that in spite of my most diligent efforts, there would unquestionably be some raping, and that I should like to have the details as early as possible so that the offenders could be properly hanged.”
American jurisprudence also accepts that American soldiers who commit crimes overseas may be tried in foreign courts. In United States v. Howard in 1993, an appellate circuit judge, Bruce M. Selya, observed that “the United States has no monopoly on evenhanded justice.” The Supreme Court said even more than that nearly a century earlier in Neely v. Henkel in 1901.
At a hearing in a Senate subcommittee in 1998 concerning the newly adopted Rome Statute, Senator Dianne Feinstein, Democrat of California, observed that “to many in the world, whether we like it or not, this country sometimes acts wrongly and we think we are always right, and I share that belief.” She was expressing her eminently reasonable anxiety about wanting the United States to support the new international court while ensuring that it would not be used as “a court that frivolously prosecutes Americans or which acts with politics, not justice, as its motivating force.” In 2014, she led a Senate inquiry into some of the allegations of violations committed in Afghanistan.
Senator Feinstein’s concern, it must be said, has not come to pass. In a recent letter to Congress, the New York City Bar Association correctly observed that there is quite simply no evidence to support the fear that the I.C.C. would engage in frivolous or political prosecutions against anyone — let alone against Americans.
It is even possible to eliminate that concern altogether. All it takes is for American authorities to submit individuals suspected of violations in Afghanistan to America’s own very effective system of justice. Doing so should effectively address the Afghan victims’ demand for justice. The I.C.C. would fully welcome that.
Chile Eboe-Osuji is a judge and the president of the International Criminal Court.