A deeper look at hostilities between the U.S. and the International Criminal Court

A new law review essay by Elon Law’s Sara Ochs explains what happened when a court set up to prosecute war crimes signaled that it might investigate crimes against humanity in Afghanistan. 

The United States has never had a close relationship with the International Criminal Court. But it wasn’t until late 2017, when the ICC’s top prosecutor sought to investigate war crimes and crimes against humanity in Afghanistan, including those allegedly committed by U.S. forces, that hostilities “bubbled over.”

Then-National Security Advisor John Bolton sought to prevent any preliminary investigation of potential war crimes involving American troops, going so far as revoking Chief Prosecutor Fatou Bensouda’s visa for travel to the United States. Faced with such open hostility, in September 2019, the court quickly rejected Bensouda’s request to open the Afghanistan investigation.

And as Sara Ochs, a Legal Method & Communication Fellow at Elon Law, concludes in a new essay exploring the dynamics of the relationship between the United States and the ICC, the fight between the two is harmful to both sides.

“The United States, the International Criminal Court, and the Situation in Afghanistan” is now available online through the Notre Dame Law Review Reflection, the publication’s online edition.

“The U.S. government’s hesitation toward and apparent distrust of the ICC essentially boils down to one primary concern: the possibility that U.S. citizens may be prosecuted and convicted by the court for conduct ordered or supported by the U.S. government,” Ochs writes. “And this concern is not unfounded.”

“The United States has an unfortunate history of engaging in internationally prohibited conduct in times of armed conflict, including its widespread use of chemical weapons in Vietnam and the abuse and torture of prisoners of war at Guantanamo Bay and Abu Ghraib.”

By bowing to hostile U.S. demands to drop its efforts, to Ochs, the International Criminal Court has reinforced the perception that it focuses its work exclusively on crimes committed in Africa and that “Western powers are immune from international prosecution for war crimes.”

Ochs concludes her essay by examining what she describes as a “significant and detrimental” impact on both the ICC and U.S. foreign policy resulting from the court’s recent decision to forgo the investigation into Afghanistan. “The full extent of the effects of the current U.S. administration’s approach to the ICC, especially with regard to its investigation into Afghanistan, remains yet to be seen,” she writes. “However, its efforts to paint the ICC as an illegitimate, ineffective institution may serve to compromise U.S. national security efforts and foreign policy initiatives.”

Ochs joined the Elon Law faculty from the New Orleans office of Akerman LLP, where she defended financial institutions and mortgage servicers in state and federal litigation. Her scholarship focuses on international criminal law, and she has previously published on the Khmer Rouge Tribunal in the Virginia Journal of International Law Digest and the Stanford Journal of International Law.

A 2014 graduate of Loyola University New Orleans College of Law, Ochs graduated second in her class after serving on the Loyola Law Review, as a member of Loyola’s Willem C. Vis Moot International Commercial Arbitration Team, and as both a teaching and research assistant. She later served as a law clerk to U.S. District Court Judge Carl J. Barbier of the Eastern District of Louisiana.

Ochs concludes her two-year Elon Law fellowship in June and will join the legal writing faculty next year at The University of Louisville Louis D. Brandeis School of Law in Kentucky.