It has long been known that US National Security Advisor John Bolton is no fan of the International Criminal Court (ICC). But today marked a dramatic step up in his rhetoric, ahead of the ICC’s decision about an investigation into possible war crimes and crimes against humanity in Afghanistan. Despite the fact than any ICC investigation will probably focus on the Taliban, the US is worried that American troops stationed in the country may be vulnerable to prosecution.
Ahead of the ICC’s announcement, Bolton claimed that the US will “ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.” (However, it seems unclear if the President actually has the legal authority to do this.)
John Bolton is right about one thing: the ICC should not be able to prosecute Americans for war crimes or crimes against humanity. The fact that the ICC can reveals huge gaps in the American domestic legal system’s ability to hold citizens and foreign nations residing in the US accountable for mass atrocities.
Bolton’s pronouncements to the contrary, the ICC only has jurisdiction over crimes included in its statute committed by citizens or in the territory of states party to the Rome Statute. That is why the ICC only theoretically has jurisdiction over Americans for crimes committed in Afghanistan (and not, for instance, Yemen). Furthermore, the ICC is a court of last resort. The principle of complementarity means that the ICC can only prosecute individuals if other states are unwilling or unable to prosecute them first.
Despite Bolton’s claim that his opposition to the ICC is to protect American service members, US military personnel are arguably more protected from ICC prosecution by the principle of complementarity than other American civilians. The US military’s court martial system is generally ‘willing and able’ to hold service members accountable for war crimes and crimes against humanity. However, there is a huge gap in the American legal systems’ ability to hold American civilians and foreign nationals residing in the United States accountable for crimes against humanity and war crimes committed abroad.
Since the 1950s, the United States military has conducted court-martials for actions technically considered war crimes. (The Uniform Code of Military Conduct, which governs military tribunals, does not explicitly refer to any offense as ‘war crimes’ or violations of the Geneva Conventions, but experts argue they prohibit all acts which would be considered war crimes.) In Afghanistan, US service members involved in the Maywand District murders, the Bagram torture and prison scandal, and the Kandahar massacre were all court-martialed. Although there were criticisms of the trials, military trials were nonetheless conducted—and therefore, there is an reasonable basis for an argument that the US military is ‘willing and able’ to prosecute service members.
However, the US legal system completely falls short in regards to people who are not subject to military court martial: government contractors. In 2011, contractors made up 52% of the Defense Department workforce in Iraq and Afghanistan. The de-facto legal immunity of contractors working abroad came to prominence in 1999, when employees of DynCorp International, one of the biggest government contractors working with the Department of Defense, were found to be buying and trading women as young as twelve years old in the Balkans. It quickly became clear that, since they could not be court-martialed, there was no US law that allowed the US to prosecute them for crimes committed extraterritorially.
In response to the outcry over the lack of trials, the US Congress passed the Military Extraterritorial Jurisdiction Act (MEJA) in 2000 which gave federal courts jurisdiction over felonies committed by persons “employed by or accompanying the armed forces” overseas (then amended to “any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas” after a number of government contractors who were implicated in the Abu Ghraib scandal could not be prosecuted, as they were hired by the CIA and the Department of the Interior). While the existence of MEJA means that there is now a statute to prosecute government contractors, it remains to be seen whether it can overcome jurisdictional and procedural challenges to become an effective tool for holding contractors accountable.
Furthermore, the United States does not even have an effective legal framework for prosecuting foreign nationals residing in the United States who have committed atrocities abroad. As Professor of International Law Diane Orentlicher said, “when we find people who’ve committed the most staggering crimes our imaginations can conjure—and those we can’t even begin to imagine—we prosecute them for visa fraud.”
Many individuals residing in the United States who have been found to have committed mass atrocities abroad in American civil suits cannot be prosecuted by US criminal courts, because the US simply does not have criminal legislation for atrocities committed extraterritorially. For example, General Carlos Eugenio Vides Casanova and General José Guillermo García, two former Salvadoran generals who were involved human rights violations including the assassination of an archbishop and the massacre of more than 1,000 peasants in El Salvador, lived in Florida for 25 years and were deported in April 2015 for visa fraud. Milenko Krstic, part of the Zvornik Brigade Command Staff which committed atrocities against Bosnian Muslims in the former Yugoslavia, in 2011 was contesting his removal from the United States for visa fraud. In February 2012, a US judge found that former Liberian warlord George Boley was involved in killings and used child soldiers as head of the rebel group Liberian Peace Council and deported him for visa fraud.
The United States legal framework is currently inadequate to hold individuals, American or otherwise, responsible for atrocities committed outside US territory. Although Senator Richard Durbin of Illinois introduced a Crimes Against Humanity Act in 2009, it ultimately failed to pass the Senate. If John Bolton really wants to keep Americans out of the ICC, rather than attacking international judges or writing another version of the ‘Invade the Hague’ bill, it may be more effective to encourage Congress to consider legislation that would allow Americans courts to hold individuals responsible for atrocities.
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