The United States has been warning the International Criminal Court to stop investigating potential war crimes in Afghanistan. Secretary of State Mike Pompeo said in March:
“We are determined to protect the American and allied military and civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation.”
“If you are responsible for the proposed ICC investigation of U.S. personnel in connection with the situation in Afghanistan, you should not assume that you still have or will get a visa or will be permitted to enter the United States.”
“These visa restrictions may also be used to deter ICC efforts to pursue allied personnel, including Israelis, without allied consent.”AP
His warnings developed into action today as the Prosecutor for the ICC, Gambian Fatou Bensouda, had her travel visa to the United States revoked.
Currently, the alleged actions against U.S. soldiers in Afghanistan are not war crimes; rather, they are allegations of improper detention and torture. Americans have been accused of torture ever since public revelations about the rare instances of waterboarding in the early 2000s, and accused of improper detention because of the rendition processes which occurred at the time.
Actual war crimes have been alleged in Afghanistan against both the Taliban and the Afghan government. Part of the ICC investigation has been the cooperation between the Afghan forces and the United States despite the allegations made against the Afghans.
The United States has never been a signatory to the International Criminal Court. The first efforts toward its construction began during the Presidency of Bill Clinton, who approved of the group in theory but admitted that there were “serious flaws” with it, particularly relating to ceding sovereignity of law to an international body. He authorized an ambassador to sign to the treaty establishing the court on Dec. 31, 2000, the last day possible to join, but the United States Senate did not ratify the treaty. George W. Bush refused to sign to the International Criminal Court. Obama did not sign, instead arranging for an “observer” status where the United States pledged its general support. Trump did not sign.
A key concern has always been the idea of subjecting Americans to legal repercussions while they were performing acts which are considered fully allowable under United States law. The Unites States is not the only country to reject the authority of the ICC. Russia, China also reject it, as do Israel, Iraq, Libya and a handful of others. For some countries, this is because of a concern that regular state actions would be branded crimes; for others, it is because a history of international bias against the nation have rendered then cautious to sign over authority. Some African nations have considered leaving the ICC over such concerns of entrenched bias, with Burundi leading the way as noted by the Guardian.
What is unusual is that, while some countries reject the authority of the International Criminal Court, it is rare for countries to ban ICC members from entry.
The ICC has issued a statement about the ban which, while not directly accusing the United States of trying to cover up illegal actions, does include comments from groups like Amnesty International, Human Rights Watch and International Federation for Human Rights that present the decision as either an effort to hide potential crime or an implicit admission of guilt.
This is the sort of international negotiation which has, historically, been a matter for experienced diplomatic action. The refusal to sign to the ICC is reasonable, considering the potential drawbacks of doing so. Hamfisted responses are of dubious efficacy, however, and may do the United States more harm than good as the country’s adversaries attempt to paint us as a rogue nation.