Who Watches the Watchmen?

 

Who Watches the Watchmen?: The Difficulty of Punishing War Criminals

Maxwell Feldman

The International Criminal Court (the ICC) is unable to prosecute many—if not most—offenders that fall into its jurisdiction because of the difficulty the court faces in confronting the global politics surrounding its work. Unlike a traditional prosecutor’s office, the ICC does not have much leverage against those it investigates; the court’s power can easily be usurped by wealthy nations, and even when the court is able to secure an arrest warrant against an alleged criminal, the international community provides little to no help in aiding the Court’s search for justice. Although there are jurisdictional limits to the ICC’s authority, in practice personal jurisdiction is not the main obstacle to the ICC investigating or apprehending war criminals. Rather, this article examines how powerful nations can ultimately nullify the power of the court by either using their influence to stop investigations, or by being reluctant to help the ICC in the pursuit of justice.

The ICC is charged with investigating crimes of aggression, war crimes, genocide, and crimes against humanity, however the court is fundamentally limited in its ability to do so because it must rely on the cooperation of not only third parties, but those it investigates to secure convictions. Some of the most hostile opposition to the court has come not from dictatorships, but democracies like the UK and the US [1]. Despite moments of public advocacy and occasionally referring the court cases through the UN Security Council, both the US and the UK have actively worked to thwart ICC investigations into their citizens [2] [3]. Even in absence of hostility, a simple lack of cooperation from a nation where alleged criminals are present, or a lack of support from the international community, is more than sufficient to halt the efforts of the court [4] [1].

Background

Despite occasional support on the international stage, the US and the UK illustrate how even democracies can serve to diminish the ICC’s ability to fulfill its efforts to hold war criminals accountable. The US has perhaps the most openly hostile relationship of any democratic nation with the Court. President Bush not only negotiated bilateral treaties with several nations to secure immunity for US nationals in countries that were members of the ICC, but he signed the American Service Member Protection Act into law, prohibiting the US government from cooperating in any ICC investigations which concern US citizens and automatically triggering a military response against the Court if it detains a US national [2]. More recently, a Trump administration executive order, that was later revoked by President Biden, sanctioned the then chief prosecutor of the ICC and her aide for opening a preliminary investigation into US forces and CIA personnel based on allegations of war crimes committed during the War on Terror in Afghanistan [2].

Similarly, even though the UK is a signing member of the Court’s treaty, the ICC halted its own investigation into British troops in Iraq after finding reasonable evidence that British soldiers tortured approximately 1,071 detainees and unlawfully killed 319 people [5]. The court itself gave up the investigation after determining British officials appeared to be looking into the alleged abuses themselves [5]. While the UK did launch numerous investigations into potentially illegal conduct by its soldiers, notably the Iraq Historical Allegations Committee and an investigation through the House of Lords, such investigations ultimately lead to nothing [3]. The ICC self-identifies as a court of last resort, meaning that the Court usurps a signing member’s sovereignty to prosecute its citizens only when the Court determines that a country has no interest in investigating or prosecuting its own citizens for crimes that fall within the ICC’s subject matter jurisdiction [5]. While it is difficult to independently determine the efficacy of any of the investigations by the UK, it is highly unlikely that a failure to prosecute defendants was the exclusive result of an inability to find evidence rather than a motivation to protect British citizens from an independent international tribunal.

In addition to the difficulties from prosecuting actors that fall within the ICC’s subject matter jurisdiction, a lack of personal jurisdiction over nations that routinely engage in human rights abuses is another challenge the court faces that ultimately hinders its position to enforce international law. The United States and China, two nations that are not signing members of the ICC’s treaty, demonstrate the court’s inability to hold powerful nations accountable. Regarding the US, the country’s extensive human rights abuses during the war in Afghanistan are well documented. The CIA operated numerous secret prisons in the country known as “black sites” for suspected enemy combatants [2]. Detainees were subject to torture including waterboarding, maintaining stress positions for hours at a time, sleep deprivation, and sexual assault [2]. Reports from a notorious black site known as the “Salt Pit” claimed that “detainees were shackled to the wall and given buckets for human waste … therefore not allowing them to sleep” [2]. While detentions and torture began under the Bush administration, President Obama drastically expanded the use of drone strikes and targeted assassinations during the war that ultimately lead to many civilians either being killed by mistake or being killed alongside people who were merely suspected of being terrorists [6].

Though not in the context of a war, China’s treatment of ethnic minority Muslims in its Xinjiang province amount to the kind of crimes the ICC should have jurisdiction over, if China was a party to the Court. A complaint sent to the ICC by advocacy groups on July 6^th, 2022, alleged that Muslims in Xinjiang were arbitrarily detained, tortured, and sexually assaulted in concentration camps [4]. While torture and genocide are both crimes that the court was explicitly created to enforce prohibitions against, neither the United States or China are members of the ICC and thus the court’s ability to prosecute offenders in these countries is limited if not non-existent [2] [4].

In the absence of personal jurisdiction, the court can appeal to the United Nations Security Council for assistance, though historically this has not made much difference in whether a potential defendant is prosecuted by the Court. If the ICC lacks jurisdiction over a nation, the Security Council has the authority to refer a party to the court [2]. While such a procedure may appear to solve the ICC’s problem of jurisdiction, the decades long conflict in Sudan shows how this process remains difficult in practice. In 2002, the Security Council urged the ICC to investigate alleged human rights abuses committed by the Sudanese government against its own people [1]. Six years later, the office of the prosecutor presented enough evidence to its court chambers to secure arrest warrants for the president, secretary of defense, and other key political and military officials in the Sudan [1]. Not only were almost none of these officials ever apprehended, but the conflict steadily got worse over the course of the last decade despite the ICC’s supposed intervention [1]. While the Security Council had the authority to intervene in Sudan by launching either economic sanctions against government officials or by sending in military forces, any action the Council could have taken to help the ICC in its effort to hold the arbiters of these human rights abuses accountable were put to an end by vetoes from Russia and China, both permanent members of the security council [1]. The rules of the UN Security Council dictate that a referral to the court and any action on its behalf must be approved unanimously by all council members [1].

Discussion

The inability of the ICC to enforce its laws, even when personal jurisdiction applies to an actor, exemplifies the near impossible challenge the Court faces to serve its most fundamental purpose: to investigate and punish the principal architects of the most egregious human rights abuses [7]. In theory, the ICC is only distinct from any other prosecutor’s office in that its scale is global, and its subject matter jurisdiction is intentionally and inherently focused on a much larger scope of criminal conduct. On the other hand, most prosecutors’ offices throughout the world do not have to grapple with questions of sovereignty, or the right a defendant has to police herself. Technically, both the UK and Sudan signed the treaty establishing the ICC’s creation and are under the court’s oversight, however in practice the Court is often unable to properly investigate and punish citizens of these countries. All the UK had to do to stop an ICC investigation was to supposedly scrutinize its own alleged misconduct and let the investigation disappear without resulting in any action. Hypothetically, even if the court continued its investigation into British soldiers in Iraq and was able to secure arrest warrants, the inability of the court to enforce arrest warrants against Sudanese officials demonstrates how futile the process of apprehending a defendant can be when the nation in question is unwilling to cooperate with an investigation, and an intervention from the international community requires near unanimous support

Though the mission of the Court is noble, its reliance on the consent and cooperation of those it investigates, coupled with a lack of support from the global community, presents a unique problem for what should be one of the most powerful prosecutor offices in the world: the inability to prosecute its defendants without their permission.

 

Bibliography

[1] Stuart Ford, THE ICC AND THE SECURITY COUNCIL: HOW MUCH SUPPORT IS THERE FOR ENDING IMPUNITY? 26 Ind. Int'l & Comp. L. Rev. 33 (2016).

[2] Elizabeth Beavers, WHERE DO THEY GO FOR JUSTICE? THE UNITED STATES-INTERNATIONAL CRIMINAL COURT AND CRIMES AGAINST HUMANITY IN AFGHANISTAN 52 Cal. W. Int'l L.J. 85 (2021).

[3] William Thomas Worster, REVISITING THE U.K. PLEDGE ON THE “FIVE TECHNIQUES” 35 Am. U. Int'l L. Rev. 873 (2020).

[4] Alex Fox, CHINA'S CRIMES AGAINST HUMANITY UPON THE UYGHUR PEOPLE UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 17 Loy. U. Chi. Int'l L. Rev. 131 (2021).

[5] International Criminal Court, Situation in Iraq/UK Final Report, (2020) chrome-extension://cefhlgghdlbobdpihfdadojifnpghbji/https://www.icc-cpi.int/sites/default/files/itemsDocuments/201209-otp-final-report-iraq-uk-eng.pdf

[6] Thomas Michael McDonnell, SOW WHAT YOU REAP? USING PREDATOR AND REAPER DRONES TO CARRY OUT ASSASSINATIONS OR TARGETED KILLINGS OF SUSPECTED ISLAMIC TERRORISTS, 44 GWILR 243 (2012).

[7] Rome Statute of the International Criminal Court, PREAMBLE, (2002)
chrome-extension://cefhlgghdlbobdpihfdadojifnpghbji/https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf