Description
In November 2017, the Prosecutor of the International Criminal Court (ICC), Fatou Bensuoda, formally requested permission from the Pre-Trial Chamber to open an investigation into the situation in Afghanistan. That request was rejected in April 2019 and is currently under appeal. Afghanistan had been the subject of a Preliminary Examination (PE) since 2007, along with several others, including the situation in Iraq (involving UK citizens) and Ukraine. All three of these situations involved potentially bringing under the ICC’s purview the conduct of citizens of three of the five Permanent Members of the Security Council (P5): the United States, the United Kingdom and Russia. For the ICC, PEs offer a possible way out of its current crisis – they are touted as a mechanism for positive complementarity, a means of demonstrating the Court is not wholly and unduly focused on Africa, and a way of flexing its muscles as a tool to ‘end impunity’ for serious violations. It is, however, a risky strategy. The US reaction was especially vociferous, with US National Security Advisor, John Bolton, threatening to destroy the Court if it proceeded with the investigation into Afghanistan, and he seems to have won the first round. The reaction of the UK was more conciliatory, on the surface at least, and Russia's strategy was largely to ignore it. This paper discusses each of the situations in turn and sets the responses of the P5 members involved in the context of the international and domestic politics of international justice. We argue that these PEs are highly significant for the future of the Court, but they may just as easily ‘kill’ it, as ‘cure’ its current malaise.
