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The International Criminal Court is set to investigate alleged U.S. war crimes in Afghanistan

- December 8, 2017

The decision by the chief prosecutor of the International Criminal Court (ICC) 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 toward 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, here’s the question many are pondering: Can the ICC survive its latest challenge?

The possible reasons behind the prosecutor’s decision to seek an investigation on the Afghanistan war have been detailed elsewhere. 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 United States may still cooperate with the ICC on cases that advance its interests, self-incriminating cooperation from the U.S. 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 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 such as the United States, 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 that the United States will not cooperate in the investigation. If cooperation is the lifeblood of an international institution such as the ICC, how can the court survive an onslaught of major-power hostility and widespread noncooperation?

Speaking law to power

The ICC became operational in 2002, designed to be the first permanent and independent international criminal tribunal with a mandate to prosecute war crimes, crimes against humanity, and genocide. Small and middle-power states were particularly attracted to it, including African nations, which saw the ICC as an institution that could transcend the hierarchy of international politics and challenge what they viewed as the excesses of global superpowers.

Unsurprisingly, states such as Russia, China and the United States were less inclined to support the ICC because they could not directly control the court. During the George W. Bush administration, the United States passed legislation to prohibit any U.S. support to the ICC and authorized the government to use “any means necessary” to repatriate any American citizen detained by the court. The Bush administration also employed coercive diplomacy to pressure states into signing bilateral immunity agreements, stating that they would never surrender U.S. citizens to the ICC.

This anti-ICC platform backfired, unwittingly lending the court a perception of being more powerful — and making it appear as if it were determining the interests and behavior of major powers. U.S. officials soon changed course and began to engage more positively with the court. Under President Barack Obama, this cooperation grew deeper, with the United States playing an instrumental role in the surrender of a number of ICC suspects to The Hague.

As relations with the United States improved, however, the ICC’s relations with other states — especially African states — worsened. There were a number of reasons, but at its core is the widespread perception that the court has done the bidding of major powers, especially the United States.

What happens now for the ICC?

As much as the court wishes otherwise, it will never receive full cooperation from states whose officials it investigates. Its role as a court of law may consequently suffer, as the ICC ultimately relies on state cooperation to gather evidence and enforce its arrest warrants.

But as an international organization, the ICC will now be the first to put the alleged war crimes of senior U.S. officials under scrutiny and investigation. That could prove legitimizing for an institution that many believed would not, and perhaps could not, stand up to global powers.

International organizations, like other political entities, regularly invest in framing how they appear to their constituents. As with all communication strategies, getting out in front of the story can yield important advantages.

So what can we expect to hear about the ICC in the weeks and months ahead, given that the organization is delving into uncharted waters? Challenging a global superpower will require strategic communications that clearly articulate the ICC’s efforts as an international organization to protect international norms of justice.

To preserve itself as an international organization, the ICC could recognize its political self, and make clear to its global audience(s) that it has no control over the politics that will lead to any and all noncooperation from Washington on the Afghanistan case. And the court actually may benefit in the long run. As counterintuitive as it seems, the more vociferously negative the U.S. response, the more likely that global perceptions about the court will improve.

Being two things at once isn’t easy — but there may be an advantage for the ICC in this case. While the potential investigation in Afghanistan may undermine the ICC’s effectiveness as a criminal court, its relevance and reputation as an independent international organization ultimately may be enhanced.

Mark Kersten is the deputy director of the Wayamo Foundation, a fellow at the Munk School of Global Affairs at the University of Toronto, and the creator of the blog Justice in Conflict.