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Can the International Criminal Court Punish Americans?

By Christopher Coble, Esq. on September 14, 2018 | Last updated on March 21, 2019

Consider the following quote from National Security Adviser and former United Nations ambassador John Bolton:

"We will respond against the ICC [International Criminal Court] and its personnel to the extent permitted by U.S. law. We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans."

Those are pretty strong words. But the United States has for a long time had a strained relationship with the International Criminal Court. It was one of seven nations to vote against the Rome Statute creating the court (along with China, Iraq, Israel, Libya, Qatar, and Yemen), and while former President Bill Clinton later signed the statute, the treaty was never submitted to Congress.

And now, with news that the ICC will investigate alleged war crimes in Afghanistan, that relationship has gotten even worse. But could the court actually prosecute and punish American citizens?

Global Justice

Bolton has never been a fan of the ICC, which he called a "freewheeling global organization claiming jurisdiction over individuals without their consent." Bolton was also serving as 3rd Under Secretary of State for Arms Control and International Security Affairs under President George W. Bush when Congress passed the American Service-Members' Protection Act (ASPA), which authorizes the President of the United States to use "all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court." This ASPA has thus been dubbed the "Hague Invasion Act," based on the court's location in the Netherlands.

As noted above, the U.S. has never fully accepted the ICC's jurisdiction, although it had reached a point of "constructive engagement" under the Obama administration.

Local Action

But could the ICC decide to prosecute American officials and servicemembers for crimes in Afghanistan? As an initial matter, the court was set up as a measure of last resort -- if countries were unable or unwilling to prosecute war crimes themselves, those crimes could be investigated and prosecuted by the ICC. So, if the United States already prosecuted any alleged war criminals, the ICC would not need to intervene.

Other issues are jurisdiction and arrest warrants. While the U.S. never signed on to the Rome Treaty, Afghanistan did. Therefore, the ICC would, theoretically, have jurisdiction to investigate war crimes in Afghanistan and indict and prosecute American nationals accused of committing war crimes there. However, while the ICC can issue arrest warrants, it still relies on member states to effectuate those arrests. Given our current posture and Bolton's comments regarding the ICC, it's hard to imagine the U.S. arresting its own officials or current or former servicemembers and handing them over to the ICC. If they happen to be found in an ICC member country, they may be in more trouble, and Bolton might need to invade the Hague.

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