Holding US Officials and Corporations Accountable at the International Criminal Court

The United States is not a member of the International Criminal Court (ICC).

Katherine Gallagher
Center for Constitutional Rights
New York, New York

But that doesn’t mean that US officials can’t be held accountable for international crimes such as torture and war crimes.

They can be held accountable for crimes committed in the 124 countries that are members of the ICC.

That’s according to Katherine Gallagher, an attorney with the Center for Constitutional Rights in New York.

It doesn’t matter that the US is not a member of the ICC?

“From the ICC’s perspective, it does not,” Gallagher told Corporate Crime Reporter in an interview last week. “The ICC cannot investigate crimes that occurred on the territory of the United States, because the US is not a state party. But it can investigate US actions on the territories of 124 member countries.”

The prosecutor at the ICC is Fatou Bensouda.

Have you spoken with her?

“I have met with her on occasion, yes,” Gallagher said.

“She is extremely principled. She is someone who follows the law. She has moved to investigate cases against the United States. She is looking at crimes by Israel. She is looking at crimes by Russia in Georgia and Ukraine. She is looking at Africa and Colombia.”

“I don’t think she is guided by politics. There are political pressures on the International Criminal Court. And they play out in a variety of ways, including funding, either to the court or countries like the US threatening to withhold funding from the Palestinian Authority for joining the ICC.”

“Overall, she is somewhat conservative when it comes to the law. She is not going to be looking to break new legal ground because she knows that the cases that she is bringing are operating in a political context. She likes to be absolutely sure of all of the facts and all of the law before she proceeds.”

“She is fair. She is careful. I do not think she is guided by politics, while the court itself operates in a very political context.”

What kind of staff does she have?

“She has about 80 prosecuting attorneys. She has a team of investigators. She has researchers. As the Yugoslav War Crimes Tribunal and the Rwandan War Crimes Tribunal have largely shut down, a number of the senior prosecutors from those courts have joined the ICC. She now has some senior international prosecutors. She also gets prosecutors from national systems. You have a variety of legal systems reflected in that office.”

Gallagher says that the court will be investigating US officials for torture and Israel for human rights violations.

“The court will be investigating senior US officials for torture,” Gallagher said. “One of the challenges the court will face is actually getting arrests when it comes to US officials. The court does not have a police force. If a US official were indicted and traveled to a country that was a member state, those countries would have an obligation to arrest and transfer. We might see some senior US officials not traveling outside the United States. We will see cases brought. But it will be a struggle to get people in the dock.”

Gallagher says that while the United States is not a party to the ICC, that does not mean it is beyond the reach of the ICC.

“The ICC has jurisdiction over the nationals of state parties and over crimes committed on the territories of state parties. The reason why the ICC can be investigating crimes by Americans – and that could be by US officials or by US natural persons who work for corporations – is because the ICC has jurisdiction over the territories of countries, including Afghanistan, Romania, Lithuania, Poland –  places where we know CIA black sites were operating.”

Has the ICC ever sanctioned a US official or a US company for crimes like torture?

“The ICC is moving in that direction,” Gallagher says. “The prosecutor put in a request in November to open an investigation into conduct by US citizens. And that request is currently pending.”

What case is that?

“It’s called the situation of Afghanistan. There is no case name. It’s a situation. That request is pending right now. We are optimistic that the court will authorize the prosecutor to investigate US citizens. And because of the nature of the ICC – it focuses on those who bear the greatest responsibility – that would be senior political and military leadership.”

Is that case specifically about torture in Afghanistan?


And who is being implicated?

“There are not individuals who have been named yet. The prosecution has asked for a three part investigation – and the third part is the US torture piece. It has spoken generally about members of the CIA, civilian political leadership and the military. In a submission I made, I have advised that they also look at private contractors who operated in this area.”

“On Israel, I suspect we will be seeing cases. Whether it will be for the assault on the Gaza playing out right now, or the 2014 war, or the settlement enterprise – I definitely think we will see cases. There will be struggles around enforcement. But one of the things about the Palestine case is it is one of the best documented cases out there. We have had very little by way of accountability at this point. But the prosecutor has a clear record to work from.”

[For the complete q/a format Interview with Katherine Gallagher, see 32 Corporate Crime Reporter 22(11), Monday May 28, 2018, print edition only.]

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