The decision by the chief prosecutor of the International Criminal Court 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 towards 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, the question many are pondering is: can the Court survive its latest challenge?
The possible reasons behind the prosecutor’s decision to seek an investigation on the Afghanistan war have been detailed elsewhere. But 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 U.S. may still cooperate with the ICC on cases that advance its interests, self-incriminating cooperation from the United States 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.
There is a real risk that the ICC may soon face an empty docket. At the current pace, its caseload will wrap up within the next two years. Surprise surrenders of alleged perpetrators could change that, and are not uncommon for the Court. The sparse workload, in combination with the ICC’s decision to directly challenge major powers like the U.S., may require the institution to think carefully about how it communicates its work moving forward.
The ICC is a criminal court — and an international organization
The ICC is a unique institution. It is a court of law, charged with investigating and prosecuting individuals for war crimes, crimes against humanity and genocide. It’s also an international organization, which makes it fundamentally political. As Michael Barnett has shown in the case of the United Nations — and as my research on the ICC illustrates — international organizations operate according to institutional interests and an unyielding drive for self-preservation.
So the decision to investigate alleged crimes by U.S. officials in Afghanistan has led to some confusion — and many questions. The ICC may emerge as the lone tribunal in history to directly confront alleged war crimes committed by U.S. forces. But, again, it is clear the United States will not cooperate in the investigation. So, if cooperation is the lifeblood of an international institution like the ICC, how can the Court survive an onslaught of major power hostility and widespread non-cooperation?
Speaking law to power
The ICC became operational in 2002, designed to be the first permanent and independent international criminal tribunal mandated to prosecute war crimes, crimes against humanity, and genocide. Small and middle-power states states were particularly attracted to it, including African states which viewed it as an institution that could transcend the hierarchy of international politics and challenge what they viewed as the excesses of global superpowers. Continue reading