Why international court's probe of war crimes won't get anywhere

Last week, the International Criminal Court in The Hague reversed an earlier decision and ruled that its chief prosecutor could open a broad investigation into possible war crimes in Afghanistan by the Taliban, Afghan government forces and U.S. military and intelligence personnel.

The U.S. reaction was swift and caustic: "This was a truly breathtaking action by an unaccountable political institution masquerading as a legal body," said Secretary of State Mike Pompeo in a formal statement.

And in case someone missed the point, he further stated that the U.S. would take all necessary measures to protect U.S. citizens from this "renegade, unlawful, so-called court."

The reason the ICC had initially determined that it would not pursue an investigation in Afghanistan is that it relies on countries' cooperation to provide evidence and transfer suspects. It is clear none of the parties - the U.S., the Afghan government or, most certainly, the Taliban - are going to cooperate.

In addition, as Pompeo pointed out, the U.S. is not a signatory to the Rome Statute that created the court. Initially, America signed the treaty and then withdrew its signature over disagreements during the final negotiations in 1998. Principally, the U.S. wanted the decisions on investigations and prosecutions to run through the U.N. Security Council, where the U.S. would have a veto. However, a majority of states - led by Norway and Canada, a pair of NATO allies - insisted on an independent prosecutor.

Because Afghanistan is a signatory to the statute, the court feels it has jurisdiction because the alleged crimes occurred on Afghan soil.

In revoking its signature, the Clinton Administration - which had been a strong advocate for such a court - made a political decision, understanding then-Senate Foreign Relations Committee Chairman Jesse Helms' (R-NC) deep hostility toward the court and Helms' belief that such a court would pose a threat to American sovereignty.

Under the courts' rules, member states have the first opportunity to bring to justice those who commit crimes and the ICC will only intervene when states show an unwillingness to act in good faith in the face of credible accusations of genocide, crimes against humanity and war crimes. There is little doubt such crimes occurred in Afghanistan. The Talibans' targeting of civilians has been particularly heinous. However, there are also allegations of torture by both Afghan security forces and U.S. personnel.

It seems clear how this will play out. None of the parties will cooperate. Victims will tell their stories and there will be a report. Denials will be issued. During the presidency of George W. Bush, the U.S. pressured more than 100 countries to sign bilateral agreements promising that they would not turn over U.S. personnel to the ICC. The U.S., which revoked the visa of the ICC's chief prosecutor in April, might try to impose some sort of economic sanctions to further show its displeasure.

The irony is that the U.S. did as much as any country to shape the ICC and bring it into existence. The idea of an international tribunal to bring to justice those who abuse their power was long in coming. An attempt after World War I failed. The Nuremberg trials, post-World War II, were an ad hoc arrangement, but the idea of a permanent court was kept alive, in many cases by American legal scholars. Many of the most important breakthroughs in drafting the statute, such as extending the court's jurisdiction into civil wars, were due to American perseverance.

America is not alone in standing apart from the court. Neither Russia nor China are signatories either, nor are several dozen other states. Our NATO allies are part of the more than 120 nations that are signatories.

The efficacy of the court was always going to balance on the knife's edge between international accountability and sovereignty, and the ICC has most certainly struggled to find its footing in its first 18 years. Yet the need for a judicial mechanism to oppose true crimes against humanity is plain and the U.S. was once its champion, driven by the belief that robust international institutions can make the world a more secure place.

Keith Peterson, of Lake Barrington, served 29 years as a press and cultural officer for the United States Information Agency and Department of State. He was chief editorial writer of the Daily Herald 1984-86.