Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia
The chief prosecutor of the International Criminal Court, Fatou Bensouda, has just picked a fight with Donald Trump by signalling her intent to investigate U.S. personnel for torture. The president-elect can be counted upon to retaliate, using the full diplomatic power of the United States.
Canada will be caught in the middle of this battle, as both a long-time champion of the ICC and a close ally of the United States, including in Afghanistan where the alleged crimes were committed. Our government needs to decide, and quickly, whether to dive for cover or defend international criminal law.
Ms. Bensouda's move is principled but also political, as she strives to save a court which has come under pressure for only prosecuting crimes in Africa.
Last month, Gambia's Information Minister stated: "There are many Western countries … that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC and not a single Western war criminal has been indicted." He decried the court as a tool for "the persecution and humiliation of people of colour, especially Africans."
Gambia, South Africa and Burundi have given notice that they will withdraw from the court next year. Chad, Kenya, Namibia and others could soon follow. The revolt, which appears to be co-ordinated, could destroy the court's legitimacy.
Yesterday, Russia, which is no friend of the ICC and has never ratified the statute, announced that it was formally withdrawing its original signature – a legally irrelevant gesture designed to increase the political pressure on the court.
Desperate times call for desperate measures. On Tuesday, Ms. Bensouda released her annual report, including a section on Afghanistan that begins by finding there is a "reasonable basis to believe" that both Taliban and Afghan government forces committed war crimes. The report then drops its bombshell, finding that there is a similar "reasonable basis to believe" that U.S. military forces and the CIA committed "war crimes of torture and related ill-treatment."
Significantly, the report finds that the alleged U.S. crimes "were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract 'actionable intelligence' from detainees". This opens the possibility of charges against senior U.S. officials, including Republican appointees.
Afghanistan ratified the ICC statute in 2003, giving the court jurisdiction over any crimes committed on its territory. This includes crimes committed by the nationals of countries, such as the United States, which have not ratified the statute. Ms. Bensouda will now seek approval from the judges to open a full investigation, including into the actions of U.S. personnel.
Republicans have always opposed the International Criminal Court, with George W. Bush going so far as to formally withdraw his predecessor's signature from the statute. Mr. Trump himself expressed support for torture during the recent election campaign. In the circumstances, it is difficult to imagine him not taking a hard position against the ICC.
Which is, presumably, exactly what Ms. Bensouda hopes Mr. Trump will do. Although the preliminary investigations were completed before the U.S. election, she had a full week to decide whether to name the United States. She did so knowing that a battle with the U.S. president is the one thing that could save the court, by demonstrating in the most unequivocal way that it treats all countries equally.
All this puts Canada in a tough spot. Last month, Foreign Minister Stéphane Dion launched an initiative to "save" the ICC. He hosted Ms. Bensouda in Ottawa, gave a strongly supportive speech, and travelled to Africa with his message. In another speech, delivered yesterday in the Hague, Mr. Dion said he is "deeply saddened" by the decision of South Africa, Burundi and Gambia to withdraw.
Mr. Dion's initiative is consistent with that taken by Lloyd Axworthy, who as foreign minister led the creation of the ICC. But while it is the right position, it puts the Canadian government on a collision course with the incoming U.S. president – which is the last thing, presumably, that Prime Minister Justin Trudeau wants to see.
Will Stéphane Dion abort his initiative to save the ICC? Or will he stand beside Ms. Bensouda, as she does battle with the world's most powerful man?