Public Prosecutor Fatou Bensouda enters the court room at the International Court in The Hague, Netherlands, December 6, 2016.
Peter Dejong / Reuters

On November 3, the prosecutor of the International Criminal Court (ICC), Fatou Bensouda from The Gambia, announced that her office had “a reasonable basis to believe” that war crimes and crimes against humanity had been committed by U.S. armed forces in Afghanistan, as well as members of the CIA in secret detention facilities in Poland, Lithuania, and Romania. The allegation was that they had tortured, mistreated, or raped at least 88 detainees between 2002 and December 2014.

What Bensouda’s statement means is that, based on the information the ICC has accumulated from governments, non-government organizations, and open sources, the allegations made against individual representatives of the United States pass jurisdictional muster and other legal requirements. This then enables the Office of the Prosecutor to proceed with a more active, on-the-ground investigation after a three-member panel of judges known as the Pre-Trial Chamber signs off on it. (Chances are high that it will authorize a full investigation, since it is safe to assume that the Office of the Prosecutor would only enter a potentially fraught situation with the United States if it had more than sufficient evidence to meet the rather low standard of “reasonable basis.”)

The United States has objected both privately and publicly to the ICC’s allegations against U.S. military and CIA officials. On November 8, U.S. Deputy Representative to the UN Michele J. Sison stated to the UN Security Council that the proposed investigation was “wholly unwarranted and unjustified.” It’s possible, given the retaliatory nature of the Donald Trump administration, that the White House might accuse the prosecutor of pursuing the case for political reasons, such as to distract from claims that the ICC has an anti-African bias or to show that the court can target powerful countries.

These accusations, however, would fall flat. Since she assumed office in 2012, Bensouda has been widely viewed as someone who has implemented policies that demand rigorous investigation and legal excellence and prioritize strict adherence to the Rome Statute, the treaty that created the ICC. There is now a consensus among those who watch the ICC closely that the professionalism and competence of the Office of the Prosecutor has greatly improved under her watch.

Another way in which the Trump administration might respond to the ICC’s statement is with what Richard Haass calls the “withdrawal doctrine.” This could mean the cessation of all relations with the ICC and pressure on allies to do the same in order to undermine the court and its work. But the United States lacks the leverage to achieve such a goal as it is not a party to the Rome Statute, meaning that it does not have the rights and access to the ICC that a member state has. Defunding the court is also not an option because the ICC receives no U.S. funds.

Meanwhile, nearly all U.S. allies are members of the court. They not only fund it but also have populations that strongly support it. These countries are likely to rebuff pressure from Washington to delegitimize the court, as they did during George W. Bush’s first term in office. At the time, John Bolton, the U.S. ambassador to the UN, oversaw a strategy of what he called the “Three No’s.” This approach, he had said, meant “no financial support, directly or indirectly; no collaboration; and no further negotiations with other governments to improve the Rome Statute.” And its goal was to “maximize the chances that the ICC will wither and collapse, which should be our objective.” It didn’t work.

In the event that the ICC charges an American for an atrocity, the only way it could gain custody of that suspect without U.S. cooperation is if a foreign government arrested and transferred the suspect to The Hague without U.S. consent. That is very unlikely to happen.

What the ICC can do is issue an arrest warrant for an American that legally binds all 123 state parties to arrest indicted individuals who enter their jurisdiction. This would be a diplomatic disaster because an indictment against a former senior U.S. official that is valid in 123 national jurisdictions could cause a tremendous diplomatic impasse and complicate U.S. relations with many of its allies all at once.

Should an investigation go forward, the Trump administration’s best response would be to engage openly with the ICC by making a genuine and transparent domestic effort to investigate, and, where warranted, prosecute those Americans most responsible for serious crimes connected with the Afghan war. This policy would not only protect American interests by promoting the moral authority of the United States but it is also the most credible and expedient way to put the allegations to rest.

It also stands without being said that a government that denies, covers up, or overlooks credible evidence is not serving the interests of its nation; it becomes an accessory to the crime and risks damaging the reputation of U.S. institutions and the government writ large. During the My Lai massacre, for example, during which U.S. forces slaughtered several hundred innocent civilians in South Vietnam, the United States at first hid the crime and denied responsibility. When news finally broke of what had transpired, the failure to quickly prosecute the handful of individuals who were involved ended up tarnishing the reputation of all American soldiers in Vietnam. The vast majority of them served with honor and courage but were quickly branded as “baby killers.”

The real U.S. interest at stake is not to prevent accountability but to prevent any judicial process—national or international—that is partial or unfair. That is why it would behoove the U.S. government to carry out genuine domestic investigations of any American officials under ICC scrutiny. Where it has already begun or finished an investigation, the U.S. government should share its full findings with the ICC. Closed cases should be reopened if warranted. What’s more, if U.S. prosecutors and courts do end up investigating or prosecuting Americans for crimes relating to Afghanistan, they would by law divest the ICC of jurisdiction—so long as the United States can prove that its proceedings are genuine and not merely for show.

Finally, open-minded engagement with the ICC helps the United States preserve the ICC as a valuable ally in its counterterrorism efforts in Afghanistan and elsewhere. For example, if the ICC held members of the Taliban accountable for the many atrocities it has committed, it would undermine the group’s narrative—and that of similar terrorist groups—that it is fighting for the preservation of Islam. By putting Taliban leaders on trial in a court of law where evidence of their horrific atrocities is on full display—mass beheadings, sexual abuse of women, and recruitment of child soldiers—there is a better chance that would-be followers will see them as what they are: criminals.

With 123 member states and 15 years of experience, the ICC is simply not going to go away. The United States can no longer ignore it, and the country is best served by policies that acknowledge this fact.

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  • KIP HALE is an atrocity crimes practitioner and term member of the Council on Foreign Relations.
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