Prof. William Burke-White (University of Pennsylvania and the Brookings Institution) reports here on the context and possible fallout of the International Criminal Court's recent decision permitting the Prosecutor to investigate United States personnel's actions in Afghanistan. Excerpt:

The prosecution of American service members for acts in Afghanistan could have been easily avoided. Most obviously, the U.S. could have started the war in Afghanistan in compliance with humanitarian law — avoiding torture and the unnecessary killing of civilians. After all, early in the Obama administration policies changed to prohibit such conduct without materially limiting the U.S. military’s effectiveness in Afghanistan. But, even once those crimes occurred early in the war, international prosecution was not inevitable. As I have argued elsewhere, the ICC was established as a court of secondary jurisdiction, leaving national governments as the primary actors to hold their soldiers and commanding officers responsible for war crimes. The court can only step in where national governments fail to undertake investigations and prosecutions themselves. As part of the ICC proceedings, the trial court assessed whether the U.S. had done so and found that “no national investigations have been conducted against those who may be most responsible.” Had the U.S. — under Presidents Bush, Obama, or Trump — made justice for past mistakes in Afghanistan a priority, including by investigating and prosecuting senior officials who may have ordered the crimes that occurred in Afghanistan, the ICC would have been stopped in its tracks. Instead, the U.S. military justice system only prosecuted a handful of lower-level soldiers.

He concludes:

. . . It is often better to have a court on your side than against you. For decades, the institutions of international justice have sought to preserve their relationship with the U.S. and interpreted the law to avoid direct conflict whenever possible. The Pre-Trial Chamber’s decision in April was a last-ditch effort to do so. The Appeals Chamber decision this week marks a turning point. The Trump administration has now fully squandered that good will and the ICC will no longer seek U.S. support. Instead, faced with no other plausible alternative, the ICC may set its sights more actively on the U.S.