The ICC and the US

The ICC was created in 1998 by the Rome Statue to convict war criminals. Since its creation the court has been a failure due to its inability to convict formative war criminals, its failure is a result of the court having to rely upon the country in which the crimes occurred to present the criminals, yet the criminals are mainly the leaders of the attacked countries. Also, the court may have a case referred to it by the UN Security Council but since the members of the council each have a veto, if a case is ever brought to the court against one of the member countries, they will not be convicted. Therefore, although the ICC is launching an investigation into possible crimes committed by American forces in Afghanistan, the US does not have to worry about a conviction because the court has not tried anyone outside of Africa.

Founded in 1998 as a result of the Rome Statute, the International Criminal Court is allowed jurisdiction over four international including genocide, crimes against humanity, war crimes, and crimes of aggression. The ICC characterizes genocide as actions taken to eliminate members of national or other ethnic groups through killing the members. Also, genocide is defined as any action that can impose severe mental and physical injury. Crimes against humanity are detailed in the Rome Statute and include rape, enslavement, and imprisonment all of which are mainly directed at women, apartheid, and sex trafficking. War crimes are noted to be the employment of child soldiers or attacking social edifices such as hospitals, religious centers, or historical sites. A crime of aggression is when one state’s actions violate the sovereignty of another country. The ICC may try a country that has committed one of the four international crimes if the said country has accepted the court or if the UN Security Council refers the case to the ICC as a result of the policies outlined in the UN Charter. Much like the UN, the ICC does not have a standing police force to implement its policies. As a result, it relies upon countries to bring the offenders of crimes to the court. Nations who abide by the court and support it are known as States Parties. Those states that do belong to the court are expected to adhere to the court’s rulings and to be cooperative.   

Many scholars believe that the ICC is a failure, this is because the court is limited in its ability to convict war criminals. The court may only try people whose countries have accepted the Rome Statute. Also, when a case is referred to the court, they fail to convict someone. Of the few cases that the court has initiated, nine of the ten of them have involved countries in Africa. Since the court relies on Security Council to have a case referred to them, the nations on the Security Council such as the US and China, are beyond the court because of their veto power. 

Although the ICC is beginning an investigation into actions committed by American forces in Afghanistan, the US does not have to worry about being convicted because the court has only convicted low tier criminals. One of the events the ICC is hoping to investigate is the supposed abuse of prisoners at a U.S.-run air base in Afghanistan. Another event the ICC will investigate is one that took place in 2002 in which American forces may have killed a 22-year-old Afghan taxi driver. The troops brought him back to an American base after it was believed that he was driving men who attacked a U.S. base. After seizing him, the driver died five days later. Another man where named Habibullah died a week before the taxi driver after dying from a blood clot. The US forces attempted to cover up the deaths and displayed them as a result of natural causes. It was later found out, after finding the coroner's report, that the taxi driver's death was ruled a homicide. In the report, the coroner listed a pulmonary embolism as the cause of death. Although the court is meant to prosecute war crimes, US forces will not be convicted because the US never gave way to the court's jurisdiction and because the US' position on the Security Council allows the country to circumvent the investigation.

Meant to convict those who have violated human rights, the ICC has failed to make any substantial convictions. Although it failed due to external and internal factors, those who have been convicted by the court are from Africa, letting many other countries who have committed war crimes such as the US, evade justice. The recent investigation into the US forces in Afghanistan will not lead to a conviction because the US can use its position on the UN Security Council to kill the investigation.