The prosecutor for the International Criminal Court (ICC) stated this week that investigations into alleged war crimes and crimes against humanity in Afghanistan may lead to the prosecution of U.S. policymakers or servicemen by the ICC. This announcement comes as no surprise to anyone who has been paying attention. As my colleague Steve Groves and I explain in our recent Heritage Backgrounder, the possibility that U.S. persons might be prosecuted over incidents that the U.S. deems lawful was one of the prime reasons why the Bush administration did not seek U.S. ratification of the treaty creating the court. The Bush administration rejected ICC claims of authority over U.S. persons and sought to negotiate agreements with countries to protect U.S. persons from being arrested and turned over to the ICC.
The ICC has not yet completed its investigation, and in any case, Afghanistan is constrained under existing agreements from turning over U.S. persons to the ICC. Nonetheless, the potential legal confrontation justifies past U.S. policy and emphasizes the need to maintain and expand legal protections for U.S. persons against ICC claims of jurisdiction. All this should lead the Obama administration to endorse the Bush administration’s policies toward the ICC.
It is also a lesson in why the U.S. should always be careful about approving international treaties, conventions, and other instruments — especially ones that give bodies like the ICC jurisdiction over citizens of nations that have not accepted their authority. As Lee Casey and David Rivkin explain in their chapter on international law in the recently released book ConUNdrum: The Limits of the United Nations and the Search for Alternatives, “If the United States can be bound by norms to which it has not agreed or that are otherwise inconsistent with its own constitutional institutions and values, its government no longer can be said to derive its ‘just Powers from the Consent of the Governed.’ Consequently, to be true to its unique heritage and identity, the United States can and must oppose any effort to establish international lawmaking authorities. This is especially true with entities such as the International Criminal Court, which could claim authority to interpret the international legal obligations of Americans and their government.”
– Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies at the Heritage Foundation, and editor of ConUNdrum: The Limits of the United Nations and the Search for Alternatives.