RACHEL MARTIN, HOST:
The International Criminal Court says it will continue to do its work undeterred despite recent remarks from the Trump administration. President Trump's national security adviser, John Bolton, lashed out at the ICC earlier this week, vowing to punish its officials with sanctions and criminal charges.
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JOHN BOLTON: We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.
MARTIN: So all this came after the ICC said that it might open an investigation into alleged U.S. war crimes in Afghanistan.
David Scheffer is with us now. He led the U.S. delegation to establish the ICC and was the first U.S. ambassador-at-large for war crimes. Thanks so much for being with us, Ambassador.
DAVID SCHEFFER: Thank you, Rachel.
MARTIN: I mentioned Afghanistan, but can you explain what the U.S. is being accused of here?
SCHEFFER: It concerns about 88 individuals in Afghanistan after 9/11 who were allegedly tortured, subjected to inhumane treatment and even rape by U.S. military personnel and Central Intelligence Agency personnel not only in Afghanistan but also at so-called black sites in Poland, Lithuania and Romania. So these are all allegations, which she has been looking at. But I must emphasize that her Afghanistan investigation - this is only a very small part of it. It's mostly Taliban crimes that she's been investigating.
MARTIN: You mentioned she. This is the prosecutor?
SCHEFFER: Yes. Fatou Bensouda is the prosecutor of the International Criminal Court.
MARTIN: So we should say the U.S. military investigated allegations of prisoner abuse, and people were held accountable. A war crime is an altogether different charge. But the main point here is jurisdiction. The ICC, as I understand it, cannot prosecute any government that hasn't signed onto the Rome Treaty that set it up in the first place. And the U.S. never did, right?
SCHEFFER: Correct. We never ratified. I signed the treaty for the United States at the end of 2000 at the direction of President Clinton. But we've never actually ratified, and therefore we're not a state party. It doesn't go after governments per se. It goes after individuals only. And in this case, that means looking at what - who - how did this get orchestrated in Afghanistan to actually pursue this type of treatment of the prisoners? Now, the United States actually - this not such a difficult situation if handled correctly. The United States simply has to demonstrate to the prosecutor that in fact it did investigate and, where merited, prosecute any individuals responsible for the alleged treatment if it's proven to be that alleged treatment. That's...
MARTIN: But the point is the U.S. government and especially the Trump administration doesn't like the idea of an International Criminal Court. And they don't believe that it's legitimate. Does the ICC have any recourse if the administration doesn't cooperate?
SCHEFFER: Oh, yes, it has recourse, which is to proceed with the investigations. If the judges agree with the prosecutor to actually authorize this investigation - it hasn't been officially started yet at all. It has - it requires judicial approval. If they proceed with it, then they'll ask the United - the prosecutor will approach the government again and ask for cooperation on information and explaining what has transpired.
MARTIN: And if they don't cooperate?
SCHEFFER: And then ultimately she could of course identify individuals who she believes might be responsible and ultimately indict them.
MARTIN: Indict them in a court that the U.S. doesn't recognize. So what would happen to those individuals?
SCHEFFER: Well, they're safe on U.S. territory. The question would be if they traveled to the territory of a state party of the Court. Then of course that state party would be obligated to transfer that individual to The Hague unless they have a special agreement with the United States that provides for non-surrender.
MARTIN: OK, we'll keep following it. David Scheffer, director of the Center for International Human Rights at Northwestern University - thanks so much, sir.
SCHEFFER: Thank you. Transcript provided by NPR, Copyright NPR.