Professor Catherine Powell wrote an op-ed in The Hill stating her support for the International Criminal Court following National Security Advisor John Bolton’s stance against the intergovernmental institution.
While the ICC is a relatively new institution, it has investigated numerous allegations and prosecuted several cases, leading to a handful of convictions thus far in cases ranging from the use of child soldiers to the war crime of murder. Even so, under the principle of complementarity, the court will not prosecute cases where the relevant country has taken necessary steps to investigate and punish war crimes. Such deference to state sovereignty, which the United States fought for in negotiating the ICC statute, should address any concerns the President has about the ICC prosecuting the United States for alleged misconduct in Afghanistan.
It is shortsighted for the Trump administration to undermine support for the important work the ICC does, as the court has played a significant role in advancing interests that the United States paved the way for following World War II, and there are many ways that America can support the court without formally becoming a party. Thus, the Trump administration should pursue a policy of “positive engagement” with the court (an approach pioneered by former legal adviser Harold Koh), which has enabled the United States to participate as an “observer” in the ICC’s Assembly of States Parties to ensure U.S. interests are met.