Washington International Law Journal


The Office of the Prosecutor of the International Criminal Court requested approval to open a formal investigation into war crimes and crimes against humanity allegedly committed in Afghanistan since May 2003. If the investigation is approved, the United States will have significant implications not only for relations going forward between the United States and the ICC, but also for the international communities' understanding of the Court's jurisdiction.Three of the United States' likely response options based on its past and current relationshipo with the ICC include: (1) declining to cooperate with the ICC based on a denial of jurisdiction due to a lack of U.S. consent; (2) negating the ICC"s jurisdiction on the basis that the situation is inadmissible to the Court pursuant to the doctrine of complementarity; or (3) contesting the ICC's jurisdiction as precluded by binding agreements made between the United States and Afghanistan. Each of these responses find footing in legal arguments centered on the tension between international jurisdiction and sovereignty. However, waiving jurisdictional challenges specific to this investigation, the United States has a fourth option: compliance. Although unlikely to actualize, this course would position the United States as a global leader for human rights, bolster any future efforts to enforce prosecution against international criminals, and provide much needed recourse to victims of war crimes.

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