Military and Veteran Groups Decry ICC Investigation

The Military Coalition, “representing more than 5.5 million current and former service members, veterans, and their families and survivors,” delivered a letter yesterday to the president and congressional leaders regarding an International Criminal Court (ICC) investigation of alleged Afghanistan-related war crimes by U.S. personnel. The letter warns that this investigation “could lead to the arrest, prosecution, and detention of American military personnel and veterans in foreign countries,” even though the United States has conducted its own investigations and pointedly refused to join the ICC.

The ICC was created to serve as a court of last resort to bring to justice those responsible for exceptionally serious war crimes and other violations of international law, such as genocide. The recently restarted ICC investigation into alleged U.S. war crimes, intensified examination of alleged Israeli war crimes, and continued examination of alleged British war crimes are deeply troubling deviations from that worthy objective. Meanwhile, the court has been far less vigorous in its pursuit of other, more appropriate targets. Indeed, as the Military Coalition observes in its letter, “It is noteworthy that the ICC is also pursuing similar investigations against our close allies in the United Kingdom and Israel, while downplaying credible allegations related to Russia.”

Because neither the United States nor Israel has joined the ICC, its investigations of their personnel violate U.S. and Israeli sovereignty, including the fundamental international law principle that a treaty is binding only on its parties and does not create obligations for non-parties without their consent.

A May 12 letter signed by 262 U.S. representatives noted that “both Democratic and Republican administrations have refused to join the Court in part because they feared its politicization and misuse.” The current ICC investigation validates that concern.

In addition, the ICC’s charter authorizes it only to investigate crimes committed by personnel whose national justice systems are “unwilling or unable” to conduct their own investigations. The United States, Israel, and United Kingdom have all shown a willingness and ability to investigate and prosecute their own service members.

As the letter from the Military Coalition states, “U.S. officials have extensively investigated credible allegations against U.S. service members and associated personnel.” The ICC is therefore “exceeding its jurisdiction and authority.” The letter concludes by asking the president, “as Commander in Chief, to protect America’s service members, veterans, and families from the politically-motivated and inappropriate actions of the ICC.”

The letter is signed by 20 different organizations that are members of the Military Coalition. These groups include current and former members of the Army, Navy, Air Force, Marines, Space Force, Coast Guard, Public Health Service, and National Oceanic and Atmospheric Administration.

While the United States does not fund the ICC, more than half the court’s budget has come from a handful of close U.S. allies. Japan and Germany, two countries that continue to benefit from the presence of U.S. service members, have been the leading ICC funders, together contributing 25 percent of its budget. France, the United Kingdom, Italy, Canada, and Spain have together contributed another 30 percent. Together, these allies have sufficient leverage to ensure that the ICC adheres to its founding principles.

The ICC’s rules of procedure and prosecutorial guidelines should be amended to ensure that the court henceforth dedicates its limited resources to addressing the many grave and systematic atrocities over which the court has clear jurisdiction and for which the relevant states are not themselves pursuing accountability.

Americans of goodwill from both political parties may disagree on the merits of the ICC and Washington’s broader policy toward the court going forward. But there should be no disagreement when it comes to countering politically motivated ICC investigations of the United States and its allies that exceed the court’s mandate.

Orde Kittrie is a law professor at Arizona State University and a senior fellow at the Foundation for Defense of Democracies (FDD), where Bradley Bowman is senior director of FDD’s Center on Military and Political Power (CMPP). For more analysis from Orde, Bradley, and CMPP, please subscribe HERE. Follow Orde and Bradley on Twitter @ordefk and @Brad_L_Bowman. Follow FDD on Twitter @FDD and @FDD_CMPP. FDD is a Washington, DC-based, nonpartisan research institute focusing on national security and foreign policy.