Does the International Criminal Court have it out for the United States? Signs lead to “No”

In the APSA Public Scholarship Program, graduate students in political science produce summaries of new research in the American Political Science Review. This piece, written by Anntiana Maral Sabeti, covers the new article by Daniel Krcmaric, Northwestern University, “Does the International Criminal Court Target the American Military?”.

For decades, the United States has been hostile to the work of the International Criminal Court (ICC), a judicial body established by the international community to prosecute and prevent genocide, war crimes, crimes against humanity and the crime of aggression. The relationship has become so tense that in 2018, the US threatened the Court with sanctions for its investigation into possible US war crimes in Afghanistan.

The United States has justified this position by arguing the Court poses an existential threat to the country and its interests abroad because of its anti-American bias. But is this the case? Does the ICC actually enact a strong bias against the United States and is it indeed hell-bent on unfairly targeting the US military via judicial investigations? In his recent APSR research letter, Daniel Krcmaric digs into this question and after considering all possible cases, he finds that the Court is no more likely to investigate cases against the US than any other country.

The Court was established in 1998 by the Rome Statute to provide justice for the victims of war crimes and reinforce global democratic norms. Since its conception, the membership of the Court has grown to 128 member countries. However, notably absent is the US, which has still refused membership. In fact, the US position against the Court is so strong that it was one of only seven countries to vote against its creation during the negotiations of the Rome Statute in 1998. While this behavior seems contrary to the US desire to proliferate liberal democratic norms across the world, American statesmen have fervently defended this stance by arguing the Court unfairly targets the US, politicizing and impeding its military operations abroad. Specifically, hawkish US figures such as John Bolton and Henry Kissinger have highlighted two characteristics of the Court that, according to them, are indicative of this embedded bias against the US and make the Court itself “an instrument of warfare.” The first quality is the territorial liability feature of the Court which permits it to still prosecute crimes committed by individuals from countries that are non-members of the Court if the crimes should occur in the territory of a member country. The second feature worrying US officials is that the ICC has an independent prosecutor that can pick and choose which cases they want to litigate in court. This autonomous decision-making is deemed a threat by the US, because the discretion of one individual could make it a target.

While these two capabilities could allow the ICC to exercise a bias against the US, does this bias actually exist? To answer the question, Krcmaric looks at all possible cases the Court could investigate (i.e., those with a large number of civilian casualties) and then compares them to those cases the court actually did investigate. This approach is unique and more accurate than previous research on this question, which only looked for bias within cases that were investigated by the ICC. This method is problematic because bias against a country would only be exposed by comparing cases the ICC chose to investigate against those it chose not to investigate and looking for any patterns.

“A more long-term evaluation reveals the inhospitable behavior the US towards these international organizations is in line with standard operating procedures. But is this hostility justified?” Using this more thorough approach, Krcmaric finds no evidence for an ICC bias against the United States. Taking into consideration the period of time that a country might be at risk for ICC investigation, whether they were members of the ICC and if the United States had boots on the ground in their territory, Krcmaric does not find a connection between the likelihood of an ICC investigation and a presence of US troops. This strongly indicates that allegations the ICC has disproportionately targeted the US are unfounded. Instead, Krcmaric provides strong evidence that the ICC is fulfilling its intended design of adjudicating war crimes and providing justice for its victims.

Recent memory would have us believe that the last presidential administration took a particularly harsh stance against the UN and its ancillary organizations, such as the ICC due to their perceived overreach into US affairs. However, this behavior was not out of the norm for the United States. A more long-term evaluation reveals the inhospitable behavior the US towards these international organizations is in line with standard operating procedures. But is this hostility justified? The evidence leads to a resounding “no.” According to Krcmaric, the ICC does not demonstrate an obsession with targeting the US, despite decades of such claims made by the American government. In fact, he finds that US military involvement shows no relationship with being investigated by the ICC. At the same time, this research does not suggest the ICC expresses no judicial bias against other countries.  For example, developing countries have long criticized the Court for disproportionately pursuing cases against them. Moreover, these countries suggest such action makes the Court a powerful conduit for neocolonialism by helping powerful countries to impose their influence on the domestic affairs of those less powerful.  Whether this is or isn’t the case is yet to be established, and there is ample room for future research on how the ICC decides to investigate cases, as well as who and what influences this decision-making.

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