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The United States has always had a very complicated and tense relationship with the International Criminal Court (ICC) and with international criminal law generally. Yet, under the Trump administration, the U.S.–ICC relationship has deteriorated to an unprecedented level. Within the last few years, the U.S. government has launched a full-scale attack on the ICC—denouncing its legitimacy, authority, and achievements, blocking investigations, and loudly withdrawing all once-existing support for the court.

These hostilities bubbled over following the November 2017 request by the ICC Chief Prosecutor, Fatou Bensouda, for the court to open an investigation into alleged war crimes and crimes against humanity committed in Afghanistan since 2003, including those perpetrated by the U.S. military. The U.S. government has always viewed the ICC as an entity designed to infringe on state sovereignty, and Prosecutor Bensouda’s request immediately invited harsh retaliation from the Trump administration. The United States, largely through and at the direction of President Trump’s former National Security Advisor, John Bolton, took significant efforts to block all preliminary investigations into the Afghanistan situation, going so far as to revoke Prosecutor Bensouda’s visa to enter the United States and threatening economic sanctions if the ICC continued its investigation.

Following the U.S. government’s prolonged and very public attack, an ICC Pre-Trial Chamber rejected Prosecutor Bensouda’s request, citing the volatility surrounding the proposed investigation and the minimal cooperation the Office of the Prosecutor had encountered to date. The court’s language leaves little doubt that the U.S. attack on the ICC and its personnel served as the crux of its decision.

The United States’s hostilities come at a time when the ICC is subject to severe global scrutiny. Widespread allegations that the court is unfairly targeting African states and seeking to undermine the sovereignty of its state members has created a “legitimacy crisis” in the court, prompting the withdrawal of several African and Asian states from the Rome Statute. In efforts to counter the global perception that the ICC cares only about African crimes, in 2016, the ICC Office of the Prosecutor (OTP) reiterated a policy of investigating a broad array of crimes committed in geographically diverse locations. In line with this policy, the OTP has begun pursuing preliminary examinations into crimes committed in non-African states, several of which implicate Western powers, including permanent members of the U.N. Security Council. While these investigations have elicited further backlash against the ICC—primarily by Western states—none has sparked as antagonistic and detrimental a response as the proposed investigation into Afghanistan.

The ICC’s apparent bending of will to the hostile attacks from the United States presents legitimate concern regarding the future direction of the court, as well as that of international criminal law more broadly. Likewise, in many ways, the ICC’s decision significantly undermines U.S. foreign policy initiatives and prerogatives. This Essay will examine the complicated history of the U.S.–ICC relationship, as well as the background of and reasons for the court’s decision denying Prosecutor Bensouda’s request for an investigation into Afghanistan. The Essay will conclude by examining the significant and detrimental impact this decision may ultimately have on both the ICC and U.S. foreign policy.



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