Over the past month, the Trump administration has ratcheted up tension with the world’s leading instrument for prosecuting war crimes and crimes against humanity. On March 15, Secretary of State Mike Pompeo announced visa restrictions for International Criminal Court officials involved in any investigation of U.S. citizens. Last week, the ICC prosecutor, Fatou Bensouda, confirmed that her visa to enter the United States has been revoked.
The administration may be tempted to argue that its toughness produced immediate results. On Friday, in a surprise development, a panel of judges at the ICC rejected the prosecutor’s bid to investigate alleged crimes in Afghanistan, including cases of torture by U.S. personnel. The judges argued that, given the security situation and the limited support from relevant states, there was little chance of completing a successful investigation.
The decision will help defuse the immediate crisis between The Hague and Washington. But it may be appealed, and the entire saga highlights why the court’s member states still need to address problems in the court’s design. They would be wise to use this moment to systematically plan for a more restrained but ultimately effective court.
Negotiated in 1998, the ICC was the international community’s answer to atrocities and ethnic conflict following the creation of special ad hoc tribunals to prosecute crimes in the Balkans and Rwanda. Rather than repeatedly establishing tribunals, the ICC’s advocates argued, why not create a permanent court?
But the ad hoc approach had the value of requiring sustained political support for investigations. Powerful countries committed time, money and leadership to creating those special courts. The states that funded the tribunals — with the United States in the lead — offered political and even military support to help ensure enforcement of tribunal judgments. In time, that commitment produced results.
By contrast, the ICC is a permanent court with staff ready to investigate myriad situations around the world. Its 122 member states only episodically focus on the court’s activities and effectiveness. The court’s underlying statute and rules do not give the prosecutor any clear mechanism to consider whether there is enough political support for an investigation to have a meaningful impact.
The result has been an overstretched and ineffective ICC that dips into a variety of complex crises. Because it has limited resources and multiple investigations, the court’s prosecutor typically pursues just a few high-level cases before shifting the court’s energy and resources to the next crisis. The ICC’s scattered attention means that the cases it does develop are often weak, and several cases against senior government officials and heads of state have collapsed ignominiously. There are also questions about the performance, behavior and qualifications of ICC judges.
Pompeo’s imposition of visa restrictions showed the administration’s characteristic lack of diplomacy and tact — but the fact that the United States reacted strongly to what appeared to be a looming investigation of its citizens was no surprise. Successive U.S. administrations have consistently rejected the court’s right to prosecute Americans.
An even more difficult situation awaits on the horizon: the Palestinian territories. The ICC is inching toward an investigation of alleged crimes that will probably include scrutiny of high-level Israeli officials for the country’s settlement policies. Like the United States, Israel has not joined the court and rejects its jurisdiction over Israeli citizens.
As the judges reviewing the Afghanistan situation appeared to realize, the ICC cannot win these confrontations and engaging in them will only damage the court’s ability to address situations in which it can play a constructive role. A court embroiled in battles with powerful states that are not members will struggle to generate the support it needs to push for justice in more fruitful environments.
For it to be effective, the states that created the ICC should consider altering its methods and structure. Specifically, these states should adopt an implementing agreement or another form of guidance to the prosecutor laying out criteria for prioritizing some investigations over others. Key factors could include whether multiple states or a regional organization has asked the court to intervene, whether an investigation would involve states that have not joined the court and potentially even whether states have expressed willingness to supplement court funding for the proposed investigation.
For the strongest advocates of international justice, a compromise such as this will smack of double standards and hypocrisy. But we are a long way from having a comprehensive and impartial system of international justice. Painful as it may be to accept, political realities make the original vision of the ICC ineffective and unsustainable. Guidelines such as this would give the prosecutor leeway to focus on situations in which there is strong international support and to avoid situations likely to showcase its limitations.
For the court’s member states, the choice is between adapting to a sobering reality — or allowing a fragile court to stumble through these dilemmas on its own and risk becoming increasingly marginal.
David Bosco is an associate professor at Indiana University’s Hamilton Lugar School of Global and International Studies. He is the author of “Rough Justice: The International Criminal Court in a World of Power Politics”.