Advocates of a restrained foreign policy often lament executive overreach, the unchecked authority to commit US forces to military actions abroad, and the curtailment of civil liberties as consequences of war. The US executive has gained entirely too much power in its ability to wage war, originally delegated to Congress. This can be seen in the authorization of limited warfare in the 1973 War Powers Resolution or, since 9/11, Congress has delegated executive authority for waging war through the Authorization for Use of Military Force. While the tug-of-war between the White House and Congress is generally a domestic issue, there are other institutions that could rein in the abuse of US executive power to wage war, such as the International Criminal Court (ICC).
In his “Second Treatise of Government,” an inspiration to the American Declaration of Independence, John Locke affirmed that, “Where there is no law, there is no freedom.” Law, therefore, is the alternative to arbitrary power. The rule of law in foreign policy is just as essential to human freedom as the rule of law in domestic governance. Foreign policy realists, however, recognize that powerful state actors — chief among them the United States — don’t often abide by the rules of international law, the laws of war, and state sovereignty.
To restrain the executive and uphold human rights, the US has two choices: Join the ICC or create laws that will hold its officials and armed services accountable to war crimes, crimes against humanity, genocide, and aggression overseas. The best option, however, is to do both.
For law to fill its role, there have to be incentives for all to abide by it, including the powerful and the weak, the large and the small, the just and the unjust. International institutions like the ICC certainly have their own set of problems, but ultimately can serve as tools to hold states responsible for their questionable behavior, especially powerful states like the US. For the US, joining the ICC is actually a sound strategy. By cooperating with the ICC, the US would put in place an incentive structure to rein in lawless behavior, including overreach on the part of the US executive.
Committing the US to international law and human rights in our decisions about foreign policy and war, therefore, creates a safeguard against executive overreach, which is essential if we want to end endless wars. As a president who has spoken about refocusing US foreign policy several times, President Joe Biden is well-positioned to pivot US foreign policy away from war and more toward restraint. Seeing the ICC as a way to improve US foreign policy and standing in the world, however, requires thinking outside the box and political will, both of which may be lacking in today’s White House.
WHY THE ICC?
Many have railed against the ICC as an infringement on sovereignty because it restricts power, but that is the point of a constitution: To subject power to law. Not only is accountability for gross atrocity crimes well precedented in international law, but sovereignty is no excuse to shield policymakers from perpetrating these crimes. Popular criticisms of the ICC cover three elements: Jurisdiction, the potential for political power play, and weak enforcement mechanisms. These criticisms, however, are not only overblown but also unreasonable.
ICC jurisdiction is narrowly defined and reserved only for the most heinous offenses, such as genocide, war crimes, crimes against humanity, and aggression. The complementarity principle ensures that the Hague could only investigate and prosecute American officials where, according to Article 17 of the Rome Statute, the US is either “unable or unwilling.” More importantly, a US investigation into its own conduct essentially prohibits any ICC jurisdiction over US officials. Unfortunately, these investigations either get swept under the rug, like we’ve seen with recent US drone strikes, or war criminals like Eddie Gallagher are all together commuted.
In theory, updating the US legal code to include these atrocity laws is enough to address this concern, but there are significant gaps. The US has already signed and ratified the 1949 Geneva Conventions as well as the 1948 Genocide Convention. Additionally, in 2007, the Genocide Accountability Act was signed into law, further codifying genocide in the US penal code. While there is no international treaty with regards to crimes against humanity, the ICC refers to the “widespread or systematic attack directed against any civilian population,” including murder, extermination, torture, and sexual violence, among other heinous crimes. Yet, those systematic crimes, individually illegal in US law, are not codified in such a way to curtail executive and military abuse overseas.
Some may fear that a rogue prosecutor might indict US officials for political purposes. A remote logical possibility should not be an obstacle to embracing lawfulness. After all, rogue prosecutors can go off the rails domestically too, but that is a weak argument against having a criminal justice system. More significantly, it has never happened. While the ICC prosecutor remains independent and can initiate an investigation on their own with the approval of the Pre-Trial Chamber, the ICC’s previous prosecutors have never done so. Indeed, prosecutors only investigated situations referred to by member states themselves or by the UN Security Council or within states already signed on to the treaty that were “unable or unwilling” to conduct their own investigations.
Some may fear that a rogue prosecutor might indict US officials for political purposes. Yet, that has never happened.
The Trump administration raised populist fears about the ICC and even imposed sanctions on ICC officials, but the complementarity principle was clearly applied in Afghanistan: The prosecutor initiated an investigation but in March 2020, deferred by request of the Afghan government to investigate any alleged crimes — by all parties — on its own. In other words, the prosecutor has cooperated. Since the US withdrawal, the ICC’s new prosecutor, Karim A. A. Khan QC, has received incredulous pushback for his decision to focus on crimes committed by the Taliban and the Islamic State-Khorasan (ISK), rather than US forces. While this scrutiny bears merit, his justification is due to the reality that the ICC has limited resources and the crimes committed by the ISK “constitute a global threat to international peace and security.” The Taliban and ISK continue to commit gross atrocity crimes and it is therefore more prudent to shift resources to bring these criminals to justice.
The final, and probably most common criticism against the ICC is that it does not have the ability to enforce its decisions. Like all international bodies, the ICC is constrained by resources and relies on member-state cooperation. However, a lengthy list of arrests and convictions isn’t necessarily a measure of success either. Human rights scholars Geoff Dancy and Kathryn Sikkink have found evidence that state parties who sign on to the Rome Statute are much more likely to adopt atrocity laws into their own domestic penal codes with the technical assistance of the ICC, resulting in more domestic prosecutions. Therefore, individual states that are able and willing to conduct their own trials and hold their own officials accountable is a better indicator of an effective institution than trials and convictions by the ICC.
What’s more, the ICC only prosecutes those top-level officials most responsible for gross atrocity crimes, not low-level offenders who carry out orders. Therefore, it isn’t US soldiers who would be at risk of prosecution, but US administration officials and policymakers. And those who make decisions and wield power, in fact, are the very persons who most need to be constrained by law. Furthermore, it would raise the stakes and change the calculations made by the executive when initiating military conflicts.
COMMITTING TO ACCOUNTABILITY
Those who advocate cooperation with the ICC share the same goals proclaimed by those seeking to constrain US military actions. For instance, the unfettered use of drone strikes through unilateral executive action, the repeal of both AUMFs, unilateral military intervention and state building, and the use of torture in Guantánamo.
Lee Feinstein and Tod Lindberg, scholars on each side of the political spectrum, point out in their book “Means to an End” that cooperation doesn’t entail or require the use of military action. It encompasses intelligence sharing, logistical and security assistance for investigators, judicial assistance and capacity-building for foreign domestic court systems, and more robust domestic laws against gross atrocity crimes, all of which are tools that serve to reinforce US commitment toward accountability and to deter the perpetration of such crimes in the future. That, at least, should be lauded by advocates for military restraint.
It is a central tenet of the rule of law that if state officials engage in atrocious crimes and gross human rights abuses, they should be prosecuted and held accountable. Impunity to commit these crimes is incompatible with basic principles of constitutional government and is offensive to every principle of the American founding. To take seriously commitments to restrain the executive and to uphold human rights, the US has two choices: Join the ICC or create laws that will hold its officials and armed services accountable to war crimes, crimes against humanity, genocide, and aggression overseas. The best option, however, is to do both.
Neil A. Saul is a recent graduate of the School of International Service at American University. He holds an MA in international relations.