The ICC does not threaten US security

On this blog last week Aaron Menenberg cautioned that a “nightmare scenario” for American and Israeli national security is unfolding at the International Criminal Court (ICC).  Specifically, he opined that the ICC’s preliminary evaluation and possible prosecution of Israel is “a direct threat to American national security.” He concluded that members of the U.S. House of Representatives should support House Resolution 209 as a clear sign that “America will not allow the ICC to become a new battleground in the fight against terrorists and despots.” Menenberg’s post contains several glaring inaccuracies and false alarms that warrant correction.

To begin, the ICC is not part of the United Nations; it is an independent and impartial judicial institution that strictly conforms to its governing statute, the Rome Statute. Just as it would be inappropriate for any political entity to intervene in an ongoing investigation by our U.S. Department of Justice, American respect for the rule of law requires that the ICC judicial process be respected.

{mosads}The first point of correction is that the ICC can investigate and prosecute only individuals, not states, and only for the three international atrocity crimes of genocide, crimes against humanity, and war crimes. The Court therefore does not have authority “to pass judgment on a country’s security needs” or to levy any sort of collective punishment on a nation. To the extent that any individual in the performance of governmental duties comes within its jurisdiction, the ICC only reviews whether the individual participated in atrocity crimes, not whether a country may exercise its right to self-defense.

Second, Menenberg misrepresented the recent comments by the ICC prosecutor, Fatou Bensouda, who in fact urged both Israel and Palestine to cooperate with her office’s preliminary examination, saying that without cooperation she “will be forced to find it from elsewhere, or I may perhaps be forced to just go with just one side of the story.  That is why I think it’s in the best interest of both sides to provide my office with information.”

Third, Prosecutor Bensouda’s comments highlight perhaps the most important point that Menenberg ignored, namely that pursuant to the legal principle of complementarity – which the U.S. itself successfully proposed in Rome during the 1998 negotiations of the Rome Treaty – the ICC is legally prohibited from becoming involved in a country that is willing and able to investigate and prosecute atrocity crimes domestically, where warranted. Given Israel’s advanced and mature judiciary and historical willingness to scrutinize its own activities, Israel’s judicial system is more than able to address any Gaza related crimes committed by its forces and thus obviate ICC intervention and thereby foreclose any ICC action as to Israel. The same cannot be said for alleged Hamas crimes that the ICC will likely evaluate, since Palestine’s under-developed judiciary will likely prevent it from being able to exert jurisdiction over Hamas. Thus, the ICC is far likelier to investigate and prosecute (if warranted) Palestinians than Israelis. 

In sum, notwithstanding Menenberg’s unsupported fearmongering, the ICC, by both design and operation, is not and cannot become a “battleground in the fight against terrorists and despots.”  The Court is an independent judicial forum to hold accountable not nations but individuals who participate in mass atrocities. The ICC should be supported as such by all nations, particularly those that currently are not among the 123 members of the Court.

Greco is chair of the American Bar Association’s International Criminal Court Project, and past president of the American Bar Association. The views expressed in this article are those of the author and do not necessarily represent policy of the American Bar Association.