By Shawn Macomber

In a troubling report over at the Heritage Foundation entitled “U.S. Refusal to Ratify Rome Statute Vindicated by ICC Afghanistan Report,” Brett D. Schaefer and Steven Groves take a deep dive into the Office of the Prosecutor for the International Criminal Court’s annual Report on Preliminary Examination Activities, which, the scholars note, “indicates more clearly than ever before that the ICC is contemplating opening a criminal investigation that could include charges against U.S. persons.”

It is important to note that the [Office of the Prosecutor] is only at the preliminary examination stage. As explained in the report, the OTP is still assessing the evidence of potential cases to determine whether the evidence is sufficient to merit seeking authorization from the Pre-Trial Chamber to open a formal investigation. This process has been ongoing since at least 2007, and it is unclear when, if ever, the OTP will move toward a formal investigation. Nonetheless, the specific reference to U.S. forces in the 2014 report is a marked change and deserves attention.

The U.S. has monitored the status of the preliminary investigation since 2007 but assumed that the OTP was not seriously considering the matter. This changed when the OTP send a letter to the U.S. government in 2013 describing evidence of U.S. abuse of detainees in Afghanistan and requesting information about those cases and broader detainee practices.

Reportedly, the U.S. sent a delegation to The Hague urging “the court not to publish the allegations, even in preliminary form. They warned that the world would see any ICC mention of possible American war crimes as evidence of guilt, even if the court never brought a formal case.” Their appeals were obviously unsuccessful and underscore the concerns of previous U.S. officials that the ICC could act in an irresponsible or politicized manner.

Obviously allegations of abuse need to be investigated fully and vigorously, but in an increasingly rare bipartisan assessment of the situation members of both major political parties in the United States have come to the conclusion that the ICC has neither the credibility nor lack of bias necessary to entrust it with such a task.

As Schaefer and Groves note:

Although the ICC represents an understandable desire to hold war criminals accountable for their terrible crimes, the court is flawed notionally and operationally. President Bill Clinton considered the ICC’s flaws serious enough to recommend against U.S. ratification of the Rome Statute unless they were resolved, and President George W. Bush concurred.

These issues continue to pose serious challenges to America’s sovereignty and national interests. The latest report only underscores the wisdom of the U.S.’s arm’s-length policy and the need to maintain practices designed to protect U.S. persons from the jurisdiction of a court that the U.S. has never joined.

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