[Jennifer Trahan is an Associate Clinical Professor at the Center for Global Affairs at New York University.]

The ICC Prosecutor announced last week that she was requesting the ICC Pre-Trial Chamber to authorize the Afghanistan Preliminary Examination moving into the Investigation stage. This would take the ICC’s Afghanistan investigation one step closer to resulting in actual cases.

We have known for quite a while that the Prosecutor was examining the situation in Afghanistan, and her past reports and press releases indicate she has been examining war crimes and crimes against humanity committed by the Taliban, Afghan government forces, and US nationals—US armed forces and CIA.

As Kevin Jon Heller notes, it will be interesting to see the US reaction to this news, yet it should hardly come as a surprise. As he also notes, the Prosecutor has been under pressure to expand her docket beyond the African continent. The US does not have anyone in the post of US War Crimes Ambassador (or head of the Office of Global Criminal Justice), so it is unclear who would lead any US response.

The US has of course one very simple way that it could react to this news, and that is to endorse the rule of law, and itself conduct any investigations into torture or ill-treatment at the hands of US nationals, be they armed forces, CIA, or contractors of either.

Under the principle of complementarity (Rome Statute art. 17), any state can avoid an ICC case proceeding by conducting a good faith investigation and/or prosecution into the same conduct. It has been high time for the US to do this, but the Prosecutor’s announcement illustrates the urgency of the US finally taking this seriously.

As a US national and a supporter of the ICC, I don’t really want to see the US locked in a showdown against the ICC. Yet, past experience (the misnamed American Servicemember Protection Act, bilateral immunity agreements, legislation allowing US forces in invade The Hague to liberate Americans in ICC custody) suggests such a confrontation is quite possible. Such an approach would not well serve either the ICC or the US, as it would amount to mere bully-tactics by the US against an institution, supported by all the US’s key allies, that is committed to ensuring rule of law for the worst crimes of concern to the international community.

Both the ICC and the US have the same interest in adhering to the rule of law, and there is a simple rule-of-law-abiding solution here: the US must undertake to do complementarity. The UK, faced with the possibility of the ICC proceeding against UK nationals for abuses committed in Iraq has been working hard to conduct complementarity; the US should do the same.

Alex Whiting raises the possibility that US conduct might not satisfy the ICC’s fairly high “gravity threshold”; yet, if the Prosecutor also includes certain “black sites” run by the CIA that were located in Rome Statute States Parties, such as Poland, Romania and Lithuania (as her announcement suggests), it is also possible that the gravity threshold will be met.  (Her announcement stated, in addition to crimes in Afghanistan, her request for authorization would include “war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.”)

We should not lose sight of the fact that the ICC is not aiming this investigation solely towards US nationals, and to the extent the ICC can prosecute the much more extensive crimes committed by the Taliban or other armed groups in Afghanistan, these would be welcome developments. Afghanistan has been plagued by decades of crimes, with those pertaining to US nationals constituting just one subset of what is at issue.

Meanwhile, the US should expeditiously fill the post of US War Crimes Ambassador (head of the Office of Global Criminal Justice), with the office’s initial focus being to finally conduct complementarity to ensure that justice for crimes in Afghanistan is done, and that to the extent US nationals are implicated in wrongdoing, that it is addressed within the US legal system. The US has credible and effective military and civilian investigative capacity and court systems which can and should be utilized.

[Jennifer Trahan is Associate Professor, The Center for Global Affairs, NYU-SPS, and Chair of the International Criminal Court Committee of the American Branch of the International Law Association.]

On Friday, October 27, Burundi’s withdrawal from the International Criminal Court’s Rome Statute, filed one year earlier, became effective. This sad event —the first ever withdrawal from the Court to become effective — warrants reflection.

While it is frequently recited that the ICC’s Rome Statute needs to move towards “universality” as to ratifications, we should be concerned that the number of ratifying countries (which had stood at 124), has decreased (to 123). Undoubtedly, the situation could be worse, in that other States Parties that have at times threatened individual or mass withdrawal (particularly African States Parties) have not done so. But, it might behoove us to reflect on the slowing pace of ratifications and now this backwards slide.   Burundi’s withdrawal should serve as a wake-up call that States Parties and Civil Society need a revitalized approach to advancing Rome Statute ratifications, because it is only through increasing membership towards universality that the ICC will ultimately escape accusations of double-standards and uneven application of international criminal justice.

Withdrawal of a State Party also illustrates that it is ultimately much more difficult for the ICC to investigate and/or prosecute where state actors are allegedly implicated in crimes. If the state where the crimes occurred is not in favor of the ICC’s involvement, the state can block the ICC from entering its territory, making investigations difficult. Then, the state can refuse to comply with requests for cooperation (as to documents and/or witnesses), and, ultimately, it can ignore any arrest warrants that issue. This is most likely to occur where there has been proprio motu initiation of the ICC’s work (that is, it was the Office of the Prosecutor (OTP)’s initial idea to originate the ICC investigation or prosecution). In such situations the country where the crimes occurred is presumably not in favor of ICC involvement, or it would have made a referral in the first place. (Yes, a State Party, where there has been proprio motu initiation owes Rome Statute cooperation obligations, but these do not always seem to carry the day.)

Where the UN Security Council has referred the situation, one might imagine the Court’s authority would be the strongest, because it could be backed up by the coercive enforcement powers of the UN Security Council. But we all know, this has never happened, and far from exerting the strongest compliance-pull, the situation of Security Council referrals has resulted in no effective follow-up. So here too, the Court is left to try to obtain cooperation from a state that has never sought its intervention and not voluntarily joined the Rome Statute system—so it neither supports the cases being brought, nor does it necessarily support the ICC in any way. Thus, far from the ICC’s power being at its height (which it could be with proper UN Security Council support), the ICC’s power is likely at its lowest ebb.

This then leaves only situations where the State Party has made a self-referral (which presumably means the State would like the ICC to prosecute either rebels or ex-regime officials); only in these situations does one expect the State Party actually has cause to cooperate—but only insofar as the ICC’s work remains aligned with State goals (that is, the prosecutions remain only directed towards rebels or ex-regime officials). In short, the ICC has built-in structural difficulties, stemming from the voluntary nature of the Rome Statute system and a need to rely upon state cooperation. The moment the ICC’s actions do not accord with a state’s self-perceived interests (judged by those in power at the time), the State Party can refuse to cooperate and/or leave the Rome Statute system entirely, as Burundi has now done.

Given all these difficulties, what more can be done to support the ICC?

First, there should be widespread condemnation of Burundi by States Parties at the upcoming International Criminal Court’s Assembly of States Parties. When a country turns its back on justice for the worse crimes of concern to the international community, it is turning its back on its own citizens, prioritizing perceived self-interest in helping perpetuate impunity. (States Parties might also commend The Gambia and South Africa—countries that initially seemed poised on also withdrawing, but ultimately reversed their withdrawals.) A clear distinction should be made between States Parties committed to ensuring accountability for Rome Statute crimes, and non-States Parties, who lack the conviction to endorse the rule of law.

Second, the difficulties the Court is having in terms of non-cooperation need to be more effectively addressed. At present, the Assembly of States Parties is still not playing an effective role in dealing with non-cooperation. An effective role, is one that would impose consequences for violations; absent serious ramifications, non-cooperation will continue. And, of course, most to blame is the UN Security Council. Why make a referral if there is no will to ensure it is effective? One would think the UN Security Council would be concerned about its referral being seen as impotent when it fails to provide follow-up. Perhaps the Prosecutor can state this more forcefully to the Council (although she probably already has) — that by failing to follow up on referrals, the Security Council is undermining not only the ICC’s authority, but also the Security Council’s own authority.

Third, we should be most concerned for the people of Burundi, who will now be effectively unprotected at the international level if crimes against humanity and war crimes are perpetrated against them. Crimes committed prior to the date of Burundi’s withdrawal, would still be within the ICC’s jurisdiction, and could in theory be prosecuted in the future (as the ICC has an open Preliminary Examination). But these could become hard to investigate and/or prosecute if Burundi refuses to cooperate (which we can now assume, despite its treaty obligations to cooperate, which would technically continue). As to ongoing and future crimes one should explore a UN Security Council referral of the situation in Burundi, so the ICC would continue to have jurisdiction going forward—but only if the UN Security Council also agrees to ensure follow-up to make its referral meaningful.