Vital Interests: Since the end of the Second World War and the Nuremberg War Crime Trials, the international community has been striving to hold accountable those responsible for genocide and egregious crimes against humanity. One effort to accomplish this was the establishment of the International Criminal Court (ICC) in 2002. Lately there has been a rollback of support for the ICC and international tribunals - can you address the current situation?

Milena Sterio: When it comes to the United States’ attitude with respect to the International Criminal Court, it is true that the Trump administration is not supportive. To put this in context, let me give you just a brief snapshot of the prior administrations and how they have handled the International Criminal Court because Trump is not the first one to be opposed. When the Rome Statute was negotiated in 1998, the United States was present at the negotiating table and the United States pushed very hard for UN Security Council involvement.

The United States wanted the court to only be able to prosecute individuals if the Security Council agreed, in which case the United States would have veto power. When that didn't happen the United States made it clear that we weren't going to become a member of the court but nonetheless, we were involved at the negotiating table and President Clinton actually, before he left office, signed the treaty authorizing American participation in the ICC, but the treaty was never submitted to our Senate for ratification.

The Bush administration was very opposed to the court, especially in the first term. There's a law that was passed called the American Service-Members’ Protection Act,  the purpose of which was essentially to prohibit and make difficult cooperation with the ICC. It also restricted U.S. participation in United Nations peacekeeping missions for fear that U.S. service members participating in a U.N. peacekeeping mission would be subject to ICC jurisdiction.

The United States also concluded so-called Article 98 Agreements, which are bilateral agreements, with almost a hundred other countries. With these agreements the United States ensured that these other countries would never refer a U.S. individual to ICC custody.  

During the second Bush term, things got a little bit better with the United States not as aggressively opposed to the court’s activities. President Bush allowed several waivers to the American Service-Members’ Protection Act, so that  U.S. military personnel could collaborate with other countries. 

Under the Obama administration, there was more constructive engagement with the court and the United States started sending delegations to the Assembly of States Parties as well as to the 2010 Kampala Review Conference.The United States also did not veto U.N. Security Council resolutions, one referring alleged crimes against humanity, war crimes and  genocide in Darfur to the ICC in 2005 and the other referring alleged war crimes and crimes against humanity in Libya to the ICC in 2011. The United States was actively involved in the transfer of two individuals to ICC custody who have been indicted by the court, Bosco Ntaganda and the Dominic Ongwen. 

Under the Trump administration, things changed for the worse if you are a proponent of the court. It happened when the Prosecutor of the International  Criminal Court Fatou Bensouda began a preliminary investigation into a situation in Afghanistan involving alleged war crimes committed in Afghanistan by Afghan forces, the Taliban, but also potentially U.S. forces.

In 2017, Prosecutor Bensouda requested the opening of an official investigation from the Pre-Trial Chamber at the ICC. In September of 2018, then U.S. National Security Advisor John Bolton delivered a speech in which he highly criticized the court, called it illegitimate, a court of unlimited jurisdiction, and said that the United States would not only not cooperate with the court but that the U.S. would also do things like block visas for ICC personnel if they wanted to come visit the United States. He also said that the United States will prosecute ICC personnel conducting investigations on U.S soil. Bolton’s speech was met by a backlash from multiple NGOs and many of our European allies but it was clear evidence of  the strong anti-ICC stand that the Trump administration was taking.

In March of 2019, Secretary of State Mike Pompeo also announced that the United States would support visa bans on ICC officials who were involved in the course of any potential investigations of American citizens for alleged crimes in Afghanistan. Pompeo’s statement was really following on and reaffirming Bolton's statements from September 2018. By the way, the United States actually implemented this anti-ICC policy: visas for some Court officials were actually rescinded. Prosecutor Fatou Bensouda is no longer allowed to come to the United States other than on non-ICC related official U.N. business.

In April of 2019, the ICC Pre-Trial Chamber rejected the prosecutor's request to open the investigation into Afghanistan - a decision that has been criticized not only for the legal standard that it set but also as an example of the United States’ improper influence on the court. That decision is now being appealed.

Secretary Pompeo again announced that the United States would impose visa sanctions against any ICC official responsible for the ICC investigation of U.S. personnel or allied personnel without our ally's consent. As of now, visa sanctions are in place and ICC officials, if they are involved in this investigation, are not able to come to the United States. No ICC officials have been prosecuted yet and, hopefully, nobody will, but that is the current state of affairs with respect to the ICC.

VI: This goes right to one of the major criticisms of the International Criminal Court, that it goes after people primarily in African countries or in poor, developing countries and that individuals from more powerful countries are protected since their governments will protest and intimidate the ICC. Is this a valid criticism?

Milena Sterio: Yes, the court has been facing tremendous criticism over the last few years. When it was created in 1998 by the Rome Treaty and started operating in 2002, the ICC was hailed as an amazing accomplishment in the field of international criminal justice, picking up where the Yugolsavia and Rwanda Tribunals left off. 

It was a tremendous transnational idea that the global community cared about: imposing individual criminal responsibility on those who commit atrocities. This enthusiasm for the court has definitely waned over the last few years because, it is true, the court has investigated and prosecuted mostly situations in African countries, with some small exceptions. It is also true that there is a perception that the court capitulated to U.S. pressure when its Pre-Trial Chamber refused to authorize the Prosecutor to open a formal investigation into Afghanistan.

The court has a fairly poor record of actually delivering convictions in the 17 years or so that it has been operational. It has only delivered a handful of convictions, some of them for relatively minor offenses, such as obstruction of justice and administration of justice offenses,  These convictions are not exactly the type of significant cases that the court was set up to handle. 

Many have asked if the Court is still a good idea, or if we should be looking for other models of accountability, such as ad hoc tribunals which arguably have been a lot more successful in imposing individual criminal responsibility.

VI: There was a recent conference in Doha, Qatar, organized by Arab states, to address the need for international mechanisms to combat impunity and the disregard of international law. Why is it that Middle Eastern and African nations do not feel that the ICC addresses their realities? Why are they calling for other criminal tribunals not controlled by Western Powers?

Milena Sterio: If you believe that the ICC will truly only investigate African countries, or no powerful countries, there are many examples you can cite to support that position. For example, the crime of ‘aggression’ was added to the court’s statute after the Kampala Review Conference, and then activated at the Assembly of States Parties in 2017. Although the crime of aggression has been added to the ICC statute, countries can essentially opt out of it. Member States still have to separately agree to be bound by this provision.

Critics of the court point out that, really, it is the powerful countries that could be accused of the crime of aggression, and such countries have been given the possibility of opting out of the ICC’s jurisdiction regarding the crime of aggression.  Critics have argued that this is yet another example of the court’s ineffectiveness when it comes to investigating the actions of any powerful country.

Another example, in this respect, is Libya. When Libyan war crimes were referred to the ICC (in 2011), there was a tremendous back and forth between the court and Libyan authorities regarding complementarity: whether or not specific individuals should be prosecuted by the ICC or whether Libya should be allowed to prosecute. Libya said it wanted to prosecute even though there was not a reliable judicial system functioning in the country.

The court was criticized for  essentially capitulating to Libya, taking the position that so long as a country says, “we are willing to prosecute,”  the ICC should back away. 

I think for some countries, the court is no longer an attractive option because they perceive it as ineffective, as weak, and as an institution that really was set up by powerful countries to prosecute others and not to look at themselves.

VI: In practice, the U.N. Security Council is supposed to recommend cases for the ICC prosecutor to look into but that rarely happens. Currently, there are serious crimes against humanity that the ICC has not been tasked to investigate: the Rohingya enthic cleansing in Myanmar,  atrocities by all sides in Libya, violent suppression and extrajudicial killings of the opposition in Venezuela, continued mass killings in Darfur and South Sudan, the bloody civil wars in Syria and Yemen. How can the ICC be more effective in these situations?

Milena Sterio: Yes, that's definitely right. There have been many situations recently where the court has proven completely ineffective because of the way that its jurisdictional mechanism is set up. One way that the court can prosecute is with a Security Council referral, but the Security Council has been completely deadlocked so that hasn’t been happening. The Darfur situation was referred and the Libyan situation was referred but since then there has been a total blockage by Russia, China and in some cases the United States, who threatened to veto any ICC involvement in situations such as Syria, Afghanistan, etc.. 

The Syrian situation is a good example of the court’s ineffectiveness.  Syria is not an ICC member state, and the ICC cannot investigate crimes committed on Syrian territory (unless such crimes are committed by a national of an ICC member state).  If Syria were a member state, arguably the court would be able to prosecute. As of now, the only way that the court can investigate the Syrian situation is through the Security Council’s involvement, if the Security Council were to vote a resolution referring the Syrian case to the ICC.  Thus far, the Security Council has been completely deadlocked and thus ineffective in involving the ICC in the Syrian situation. 

One way  to temper any criticism of the court is to argue that the lack of international investigation and prosecution in Syria is not really the ICC’s fault, but that this is a   Security Council’s failure, because it is the Security Council's responsibility to maintain international peace and security ,and the Security Council has failed to do so in Syria. 

Now, you also mentioned the Rohingya situation. There the court has basically argued that it has jurisdiction because the Rohingya refugees fled from Myanmar to Bangladesh.Myanmar is not an ICC member state, but Bangladesh is a member state. Many scholars and those who comment on the court's work think this is a positive development and that this demonstrates the court’s willingness to seriously  investigate the plight of the Rohingya.

VI: Is that being referred to the prosecutor? What's the next stage for that situation?

Milena Sterio: If the Security Council refers a situation to the courts then the court will proceed, but if it is the prosecutor who wants to initiate an investigation then she needs to seek Pre-Trial Chamber approval. For example, in the Afghanistan situation, the Pre-Trial Chamber did not authorize to the prosecutor to open a formal investigation.  

With respect to Myanmar, the prosecutor has formally announced over the summer that she will request Pre-Trial approval to open an investigation into crimes committed in Myanmar. Assuming that the Pre-Trial Chamber says yes then this will go forward.

VI: Within the U.N. mechanism to deal with atrocities and serious human rights violations, is there a way for the General Assembly to work around the Security Council and refer cases to the ICC?

Milena Sterio :There are three ways in which cases can end up before the ICC: through a Security Council referral, or if the prosecutor opens an investigation on her own or if there is a referral by a state party. And in the latter two instances, the Pre-Trial Chamber has to formally approve the opening of an investigation.  

The General Assembly cannot work directly around the Security Council but there could be advocacy or action in the General Assembly to lobby a Member State, for example,  to refer a situation to the prosecutor. Remember that the General Assembly could do other things as well. For example, the General Assembly acted to create the so-called IIIM - International, Impartial and Independent  Mechanism for Syria. This is not a court but it is an investigative mechanism that was set up through the General Assembly, and that was a total workaround of the Security Council. 

VI: When there are war crimes and serious human rights violations, especially in internal conflicts, negotiating an end to violence and achieving an enduring peace is difficult. Sometimes amnesties are granted as opposed to prosecuting. For example in Guatemala, as part of a peace agreement a National Reconciliation Law was adopted to bring people to justice for serious human rights violations but now, with a new government, that law has been rolled back. Is that problematic?

Milena Sterio: Among international legal scholars, and especially among  those who work on transitional justice issues, there is consensus that a domestic amnesty law, especially one providing blanket amnesty, should not function as an impunity shield. A subsequent prosecution, especially in an international tribunal, can certainly trump such a domestic amnesty law.

One particular example that I would mention is Sierra Leone. In Sierra Leone, the government passed  a domestic amnesty law. A few years later, the Special Court for Sierra Leone was established which was a hybrid tribunal set up between the government of Sierra Leone and the U.N., where some of the individuals who were supposedly covered by the amnesty law were eventually prosecuted.

VI: Going forward, do you see transitional justice mechanisms working to secure a cease-fire in conflict zones and facilitate a peace agreement?

Milena Sterio: I definitely think transitional justice mechanisms are very important in order to facilitate peace agreements. A perfect example of this is the Dayton peace accord signed in 1995 that ended the conflict in the former Yugoslavia. That agreement, coupled with the establishment of the International Criminal Tribunal for Yugoslavia, ensured that peace was linked to transitional justice – that those who signed the peace agreement could still face individual criminal responsibility in the ICTY.  

VI: You mentioned hybrid or special tribunals like the ones set up in Sierra Leone, in Cambodia, and a tribunal set up to address the genocide in Rwanda. Do you think those are successful models given what they've accomplished?

Milena Sterio: Yes I think that, in general, they are successful models. In Cambodia, it is a little bit different because there, the hybrid  tribunal (the Extraordinary Chambers in the Courts of Cambodia) was set up in 2003 in order to prosecute those responsible for the Khmer Rouge regime atrocities that took place in the 1970s. That's a little bit remote but, nonetheless, the establishment of the Cambodian tribunal supports the proposition that if you commit atrocities, you may at some point, in the distant future, be held accountable.

If you believe in deterrence,  the existence of any hybrid or special tribunal is an important deterrence mechanism. In Rwanda, I think that the International Criminal Tribunal for Rwanda (ICTR)  has been an important factor in the national reconciliation process. It is important to note that, for the purposes of national reconciliation, the presence of a tribunal is not enough.   I think that national reconciliation requires that there be a tribunal coupled with other efforts to promote reconciliation and healing.

VI: Looking forward how can the United States re-engage with and support the international justice movement?  

Milena Sterio: There have been some positive developments under the Trump Administration regarding international criminal justice.  Within the State Department, there is the Office of Global Criminal Justice, headed by a person who is nominated by the president and confirmed by the Senate as the Ambassador at Large for issues such as war crimes, crimes against humanity, and genocide. 

There was some hesitation when President Trump came into office as to whether this position would be filled, but last April President Trump nominated Professor Morse Tan of Northern Illinois University College of Law for this position. Having someone in that office is a positive development because one of the aims of that office is to work on global criminal justice issues, and the fact that this office may have an Ambassador in place may indicate that the United States is going to continue being engaged in global criminal justice issues

The most serious questions is how can the United States engage with the ICC even without being a member of the court? The United States could  go back the Obama Administration policy of constructive engagement with the ICC, which included things like sending a delegation to the annual Assembly of States Parties, and working with the court on other important issues

I would argue that it would be beneficial for the United States to have a delegation at each ASP,  and I think that it would be beneficial for the United States to cease engaging in these aggressive obstructionist policies such as, for example, denying visas to ICC personnel who are coming to the United States. I don't think that these policies are helping the United States at all. If the ICC wanted to prosecute an American national, it still could do so today, regardless of these anti-ICC policies that the US has been adopting under the Trump Administration.  These policies are not protecting US interests and are not shielding U.S. nationals from ICC prosecution.  

VI: Given traditional American values and the country’s history of standing up for human rights, does the United States have a responsibility to condemn egregious crimes?  The recent Turkish incursion into Syria, for example, could be described as ethnic cleansing which is a serious human rights violation. How should the U.S. respond? 

Milena Sterio: The United States is a world leader and often advances its moral authority to weigh in on these kinds of issues. Let’s compare the U.S. stance toward the ICC in 2005 to that existing today.  In 2005, in the wake of ethnic cleansing and genocide that took place in Darfur, the United States strongly supported the Security Council referral of the situation to the ICC. That sent a very strong message that the United States cares about global justice, and that the United States is prepared to make sure that individual criminal responsibility is imposed on world leaders who engage in these types of policies.

Fast forward to 2019, to the ethnic cleansing and perhaps much worse taking place in Northern Syria, a region occupied by Kurds whom the United States has traditionally supported. President Trump recently announced that our troops would withdraw from Northern Syria, which gave the green light to Turkey to go ahead and launch a military action in Northern Syria. The United States just recently vetoed a proposed Security Council resolution that would condemn Turkey for its actions in Northern Syria. It's likely that under the Trump administration, the United States will continue to veto any UN Security Council action regarding Turkey. That sends a much different message than what we were doing back in 2005. 

It's a serious foreign policy failure to stand silent and not to condemn war crimes and crimes against humanity. I would also say that the United States policy vis-à-vis the ICC  is a national security issue. It is in the United States’ national security interest to constructively engage with the court in a way that allows us to exert meaningful and appropriate influence on international criminal justice cases and issues.  It is against our national security interests to abandon our allies, and to engage in obstructionist anti-ICC policies which obstruct the reach of international criminal justice

Milena Sterio is the Charles R. Emrick Jr. - Calfee Halter & Griswold Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law. Professor Sterio is a leading expert on international law, and in particular, maritime piracy. Sterio is one of six permanent editors of the prestigious IntLawGrrls blog, and a frequent contributor to the blog focused on international law, policy and practice. Serving as a maritime piracy law expert, she has participated in meetings of the United Nations Contact Group on Piracy off the Coast of Somalia. Sterio is also a member of the Piracy Expert Group, an academic think tank functioning within the auspices of the Public International Law and Policy Group.