Because the ICC has almost solely investigated, tried, and convicted African defendants, many scholars and government officials have criticized the ICC for being geopolitically biased.5 It is important to recognize, however, that external actors have largely dictated the ICC’s docket. Specifically, the OTP has only initiated one of the ICC’s nine African cases, whereas African governments have brought forward six cases, and the United Nations Security Council has referred two cases.6 Herein lies the value of the OTP taking existing preliminary examinations in non-African countries and transitioning them into full-fledged investigations. If the OTP begins one or two new investigations in non-African countries, then the ICC can point to this development as a counter to the geopolitical bias argument. This will in turn increase the ICC’s legitimacy in the eyes of countries that may be considering withdrawal.

The ICC has three existing preliminary examinations in Afghanistan, Iraq/United Kingdom, and Colombia that it could realistically turn into investigations.7 Afghanistan has been under preliminary investigation since 2007 for war crimes and crimes against humanity “committed in the context of the armed conflict between pro-Government forces and anti-Government forces.”8 Prosecutor Fatou Bensouda has indicated that an ICC investigation in Afghanistan will likely unfold in the coming months.9 This news comes on the heels of the three African countries’ announcement of withdrawal, so it is possible that the Prosecutor is actively campaigning to erode the geopolitical bias narrative. Investigating Afghanistan may prove uniquely difficult, however, because “investigating insurgent crimes and attempting to assign individual criminal responsibility for them will test the investigative capacity of the court.”10 This is especially true because the ICC has traditionally focused on prosecuting key leaders who orchestrated human rights violations, rather than foot soldiers that actually committed the violations.

It is also possible that an ICC investigation in Afghanistan would bring the United States (a non-state party) under the ICC’s scrutiny. While investigating Afghanistan, the ICC would be able to investigate alleged war crimes that the United States has committed in the region, such as the U.S. attack on a Médecins Sans Frontières facility that resulted in several dozen deaths.11 The Prosecutor could massively erode the geopolitical bias narrative if she investigates and later tries the United States for proven human rights violations. Realistically, however, the ICC will most likely focus on crimes committed by Taliban forces in Afghanistan, leaving the United States out of the spotlight. It would be highly risky—with little chance of reward—for the ICC to take on the United States.12

Another country that the OTP could begin investigating is Iraq/United Kingdom. Since reopening its preliminary investigation in 2014, the ICC has focused on “alleged crimes committed by United Kingdom nationals in the context of the Iraq conflict and occupation from 2003 to 2008, including murder, torture, and other forms of ill-treatment.”13 In July, the Prosecutor announced that it has not officially ruled out prosecuting Tony Blair for war crimes.14 Opening an investigation in Iraq would have major repercussions for future withdrawals because it would erode the geopolitical bias narrative and signal to states parties that the ICC is not beholden to western powers. This course of action is largely contingent on the OTP’s consideration of the Chilcot Report, which will hopefully “provide further context to the allegations of war crimes by British troops in Iraq.”15 At the same time, investigating the United Kingdom may backfire and result in the United Kingdom deciding to withdraw from the ICC. Thus, the likelihood of an investigation against the United Kingdom may be just as low as one against the United States.

Finally, the OTP could dissuade additional withdrawals by investigating Colombia. The ICC has had an ongoing preliminary examination in Colombia since 2004 for war crimes and crimes against humanity that were “committed in the context of the armed conflict between and among government forces, paramilitary armed groups and rebel armed groups.”16 Until now, the OTP has not initiated an investigation in Colombia because the government and opposition forces (FARC) were engaged in peace negotiations, which just concluded in August.17 The final peace agreement addressed the ever-present peace versus justice dilemma by including an explicit “exclus[ion] [of] amnesties and pardons for crimes against humanity and war crimes under the Rome Statute.”18 The peace agreement also established a “Special Jurisdiction for Peace” to address human rights violations at the national level.19

A few weeks ago, however, Colombian voters rejected the peace agreement via a nationwide referendum.20 Colombians rejected the peace agreement because “[t]he deal would have allowed rebel leaders to avoid jail if they confessed to their crimes such as killings, kidnappings, indiscriminate attacks and child recruitment, something that many Colombians found hard to swallow.”21 Human Rights Watch similarly reported that “the rules announced by the government and FARC could [have been] used to ensure broad immunity for state agents…including creating a shield against prosecution for the systematic execution of as many as 3,000 civilians.”22 Currently, Colombian President Juan Manuel Santos has “pledged to deliver a peace accord by Christmas” of this year and “warned that further delay could imperil the process.”23 At this time, domestic uncertainty and the looming threats of resumed conflict and impunity for perpetrators give the OTP ample cause to begin an investigation in Colombia. The Prosecutor should continue to monitor the peace negotiations and be ready to step in and investigate. This is important not only to curtail the geopolitical bias narrative and prevent state party withdrawal, but also to protect victims of violence in Colombia.

Conclusion

Ultimately, it will be difficult for the ICC to navigate the coming months because it must juggle the competing interests of (1) dissuading states parties from withdrawal and (2) avoiding the appearance of making politically-driven decisions. If the OTP does begin opening new investigations in the coming weeks and months (particularly in Colombia), it will be important for the ICC to emphasize that these new investigations are independent from, and not a political response to, the three African country withdrawals. It will probably be impossible for the ICC to avoid appearing impartial in this highly contentious situation, but this should not deter the court from opening new investigations.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See Edmund Blair, Burundi notifies U.N. of International Criminal Court withdrawal, Reuters, Oct. 26, 2016, available online. ↩

2. 2.

   See Preliminary examination: Burundi, ICC, available online (last visited Nov. 15, 2016). ↩

3. 3.

   See Camila Domonoske, South Africa Announces Withdrawal From International Criminal Court, NPR, Oct. 21, 2016, available online. ↩

4. 4.

   See Situations under investigation, ICC, available online (last visited Nov. 15, 2016).

   (The only non-African country that the ICC is currently investigating is Georgia). ↩

5. 5.

   Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online.

   (“[S]ome African leaders have called the court an instrument of modern colonialism, noting that all of those convicted have been Africans”);

   See also Domonoske, supra note 3; Is the ICC biased against African countries?, Al Jazeera, Mar. 26, 2016, available online. ↩

6. 6.

   See Chan & Simons, supra note 5. ↩

7. 7.

   At this point, the preliminary investigation in Palestine should not be considered for an upgrade to investigation because the ICC would be forced to address complicated, hyper-politicized issues such as the question of Palestine’s statehood. ↩

8. 8.

   See Preliminary examination: Afghanistan, ICC, available online (last visited Nov. 15, 2016). ↩

9. 9.

   David Bosco, International Criminal Court Poised to Open Investigation into War Crimes in Afghanistan, Foreign Pol. (Oct. 31, 2016) available online. ↩

10. 10.

    Id. ↩

11. 11.

    Id. ↩

12. 12.

    Richard Falk, Opening the other eye: Charles Taylor and selective accountability, Al Jazeera, May 1, 2012, available online.

    (“[I]t might be well to remember that the United States—more than any country in the world—holds itself self-righteously aloof from accountability on the main ground that any international judicial process…Congress has even threatened that it would use military force to rescue any US citizens that were somehow called to account by the International Criminal Court in The Hague, and has signed agreements with more than 100 governments pledging them not to hand over US citizens to the ICC.”). ↩

13. 13.

    See Preliminary examination: Iraq/UK, ICC, available online (last visited Nov. 15, 2016). ↩

14. 14.

    See Statement of the Prosecutor correcting assertions contained in article published by The Telegraph, ICC (Jul. 4, 2016) available online. ↩

15. 15.

    Id. ↩

16. 16.

    See Preliminary examination: Columbia, ICC, available online (last visited Nov. 15, 2016). ↩

17. 17.

    See Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the peace negotiations between the Government of Colombia and the Revolutionary Armed Forces of Colombia—People’s Army, ICC (Sep. 1, 2016) available online. ↩

18. 18.

    Id. ↩

19. 19.

    Human Rights Watch, Colombia: Prosecution of False Positive Cases under the Special Jurisdiction for Peace, (Mar. 28, 2016), [hereinafter False Positive Cases] available online. ↩

20. 20.

    Sibylla Brodzinsky, Colombia referendum: voters reject peace deal with FARC guerrillas, The Guardian, Oct. 3, 2016, available online. ↩

21. 21.

    Id. See also John Mulholland & Ed Vulliamy, We must agree peace by Christmas or hope will end, says Colombian leader, The Guardian, Oct. 29, 2016, available online

    (“[C]ritics attacked one of the central tenets of the deal—the so-called system of ‘transitional justice’, which meant FARC leaders could have avoided lengthy jail terms in return for confessing their crimes and working to build peace—saying it was too lenient.”). ↩

22. 22.

    See False Positive Cases, supra note 19. ↩

23. 23.

    Mulholland & Vulliamy, supra note 21. ↩