THE HAGUE, Netherlands (CN) – Despite the U.S. having signed onto several global treaties, it is exceedingly unlikely that President Donald Trump or any American could end up in an international court for actions taken during the ongoing conflict with Iran.
Legal experts see no path to the International Criminal Court and few options for prosecution under other treaties, and generally agree that the assassination of foreign officials isn’t a crime under international law.
The International Criminal Court
The Hague-based ICC is an international legal body that prosecutes war crimes and crimes against humanity. Established by the 2002 Rome Statute, the ICC can only investigate and prosecute crimes that take place in a member state or are committed by a member state. It can also take up a case that is referred to it by the United Nations Security Council.
The United States, Iran and Iraq are not signatories to the treaty, leaving the ICC with no jurisdiction to investigate the airstrike in Baghdad that killed Iranian General Qassem Soleimani last week or any subsequent aggressions.
The U.N. Security Council could refer potential crimes to the ICC, but any permanent member can block a referral. The United States, China, France, Russia and the United Kingdom are the council’s five permanent members.
The Trump administration has argued the ICC poses a threat to American sovereignty and revoked a U.S. visa for the court’s top prosecutor ahead of a possible investigation into atrocity crimes in Afghanistan.
It is possible that a future U.S. administration could sign onto the Rome Statute and allow for investigations to be retroactive, or decline to block a referral by the Security Council. Iraq and Iran could do the same and refer an investigation to the ICC.
But Kevin Jon Heller, associate professor of public international law at the University of Amsterdam, said any action on the part of the White House is unlikely.
“One of the few truly bipartisan issues in the U.S. is not joining the ICC,” he said in an interview.
Beyond the Rome Statute
The Rome Statute isn’t the only basis for international law. The U.S. is a signatory to a number of treaties that could be applicable.
On Saturday, President Trump tweeted that if Iran retaliates, the U.S. had put together a list of 52 potential targets, including those “important to Iranian culture,” to attack in response.
The destruction of cultural sites is explicitly forbidden by the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which the U.S. signed in 2009, as well as the Geneva Convention for the Protection of Civilian Persons in Time of War.
Enforcement of both of these conventions has been uneven. The International Criminal Tribunal for the former Yugoslavia, a special tribunal set up to prosecute crimes committed during the Bosnian War, did prosecute people for the destruction of cultural property. But the only other such case was that of Ahmad Al Faqi Al Mahdi, who was found guilty by the ICC in 2016 for destroying religious and cultural artifacts in Timbuktu, Mali.
Joe Powderly, assistant professor of public international law at Leiden University, said it’s unclear which court, if any, would have jurisdiction in the event of a violation of these conventions.
“The United States doesn’t recognize the compulsory jurisdiction of the International Court of Justice,” he said, referring to another court based in The Hague.
The ICJ is the U.N.’s highest legal body but it only hears disputes between nations, so Trump could not be put on trial there for any potential treaty violations.
Practically speaking, charging people or states with such violations is difficult, as countries often claim cultural sites are being used as a cover for military installations or that they simply missed their target.
“Meaningful action would be extremely limited,” Powderly said.
In the 17th century, a Dutch philosopher proposed that any international crime could be prosecuted anywhere in the world, as there are universal notions of right and wrong.
Countries including Belgium, France, and Finland have accepted the idea that international crimes, such as crimes against humanity, could be prosecuted in their national legal systems, regardless of where those crimes occurred. The South American country of Argentina is currently allowing a case to proceed in its court about the genocide of the Rohingya ethnic group in the East Asian country of Myanmar.
A hypothetical attack against cultural sites, as Trump threatened, might qualify as a violation of international law, but the killing of Soleimani almost certainly does not.
“The evidence that this is an international crime is scant,” said Heller, the University of Amsterdam professor.
International humanity law focuses mostly on atrocity crimes, such as genocide. The killing of top leaders during an armed conflict is within the realm of wartime activity.
The White House has been careful to not refer to the killing of Soleimani as an assassination, as that has been prohibited under U.S. law since 1981. An executive order signed by then-President Ronald Reagan forbids U.S. military or intelligence personnel from conspiring to or engaging in assassination.
The Trump administration has instead claimed it was preventing an “imminent attack” on U.S. citizens.
“We want the world to understand that there was, in fact, an imminent attack taking place,” Secretary of State Mike Pompeo said at the time of the drone strike.
The U.S. Constitution, in Article II, and elaborated on in the War Powers Act of 1973, only allows Congress to declare war, but the president can respond in the event of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
Even if there was a crime to prosecute, it is even more unlikely that Trump himself would be held accountable.
“It is not easy to link senior people to crimes,” said Elies van Sliedregt, professor of comparative international and criminal law at the University of Leeds.
War crimes set a high bar for evidence. Even Trump’s tweet about bombing cultural sites would likely not be sufficient to convict him in an international court if the U.S. did bomb civilian targets.
“It would have to be corroborated,” van Sliedregt said.
Meanwhile, tensions continue to rise. Iran struck two military bases in Iraq where U.S. personnel were stationed early Wednesday as retaliation for Soleimani’s death. The prime minister of Iraq has called for U.S. forces to leave, after the country’s parliament passed a nonbinding resolution expelling any foreign military.