www.ndu.edu/inss TRANSATLANTIC CURRENT No. 4 1 

Following the wars in the Balkans, the North Atlantic Treaty Organization (NATO) and the International Criminal Tribunal for the former Yugoslavia (ICTY) established solid cooperation, whereby NATO supported ICTY in its quest to bring persons indicted for war crimes (PIFWCs) to 

justice. NATO Headquarters has provided substantial material used as evidence 

in various ICTY cases. NATO members have participated as witnesses to ICTY. 

Personnel of the NATO-led operations in Bosnia and Herzegovina,1 as well as 

Kosovo,2 have detained and handed PIFWCs over to ICTY personnel who arrested them based on indictments issued by the tribunal’s prosecutor.3

 The solid 

working relationship, while possibly temporarily challenged, was not put in serious 

jeopardy when the ICTY prosecutor investigated NATO’s conduct of operations 

during Operation Allied Force (also known as the Kosovo Air Campaign). The investigation did later clear NATO of the allegations of war crimes levied against it.4

War Crimes in NATO’s Current Theaters?

The International Criminal Court (ICC) might be interested in cooperation 

of a similar nature since it is investigating the situation in at least one theater where 

NATO has led an international military operation and is reportedly conducting 

preliminary examinations regarding other theaters where NATO currently deploys forces. On the one hand, the ICC prosecutor was reported to have opened a 

preliminary file regarding Afghanistan5 and earlier conducted a preliminary examination regarding Iraq.6

 For the purpose of analyzing the seriousness of any allegations that lead to opening these files, the ICC prosecutor may seek information 

from appropriate sources, including international organizations.7 Nothing, however, is publicly known as to whether some interaction between NATO and the ICC 

followed suit. On the other hand, the possible investigation of NATO’s conduct 

of operations regarding Libya8—as requested by the lawyer of Colonel Muammar 

NATO and the ICC: 

Time for Cooperation?

by Ulf Haeussler

Transatlantic CURRENT

National Defense University

About the Author

Ulf Haeussler is the NATO Fellow in 

the Center for Transatlantic Security 

Studies, Institute for National 

Strategic Studies, at the National 

Defense University.

Key Points

◆ The Prosecutor of the International 

Criminal Court (ICC) has 

opened a couple of preliminary 

examinations regarding theaters 

of NATO-led operations.

◆ The NATO track record regarding 

its cooperation with the 

Prosecutor of the International 

Criminal Tribunal for the Former 

Yugoslavia is positive.

◆ NATO may want to consider 

developing a similarly positive 

working relationship with the 

ICC prosecutor based on mutual 

goodwill and respect, and on an 

ad hoc basis.

March 2012

CENTER FOR TRANSATLANTIC SECURITY STUDIES
2 TRANSATLANTIC CURRENT No. 4 www.ndu.edu/inss

Qadhafi’s family9—might also warrant interaction. Again, 

however, no related press reporting exists. All mentioned 

theaters should be expected to involve crimes within the 

ICC’s jurisdiction.

Notably, it is significantly more likely that those war 

crimes (Afghanistan and Iraq) and crimes against humanity 

(Libya), respectively, were perpetrated by individuals whose 

conduct is not controlled by NATO—mainly members of 

nongovernmental organized armed groups but allegedly 

also host nation security forces—than by personnel of the 

NATO-led operations.10 Preliminary examinations and investigations conducted by the ICC prosecutor might hence 

confirm that NATO and its members abide by the law of 

armed conflict/international humanitarian law, confirmation that would add legitimacy to the conduct of hostilities 

by NATO-led forces. Thus, there may be good reasons for 

NATO and the ICC to work together.

In light of the foregoing, it seems worthwhile to 

inquire whether such cooperation could occur, employing the overall positive record of cooperation between 

NATO and ICTY as a blueprint for similar cooperation 

between NATO and the ICC in the future.

The Challenges

To date, nothing in press reports or other publicly accessible sources suggests the existence of any formal ties between NATO and the ICC. As a matter of fact, taking into 

account that not all members of NATO are also states parties to the ICC Statute11 (the United States and Turkey are 

not), it would be surprising if any such formal ties existed. 

Since formal ties might imply some kind of recognition of 

the ICC, there may be strong policy incentives to keep such 

recognition rather “low key.” In particular, it would seem 

that from the perspective of the non-parties it may be desirable to ensure that such recognition does not imply acquiescence regarding any of the “innovations” contained in 

the ICC Statute. As far as substantive international criminal law is concerned, the notion of “innovations” refers to 

rules that aim to penalize conduct that was not outlawed 

by the principles and rules of the law of armed conflict/international humanitarian law, which are binding upon all 

members of NATO. These principles and rules stem from 

the 1949 Geneva Conventions (to which all members of 

NATO are states parties) and customary international humanitarian law. By contrast, the ICC statute contains criminal provisions whose scope is broader than the prohibitions 

contained in the 1949 Geneva Conventions and customary 

international humanitarian law; in some cases they might 

even be broader than the limits placed upon the conduct 

of hostilities by the 1977 Additional Protocols (to which 

neither the United States nor Turkey have subscribed) and 

other existing international agreements.

However, trying to avoid the impression of acquiescence regarding any of the mentioned “innovations” 

might not be palatable for the members of NATO who 

are also states parties to the ICC statute and may hence 

consider themselves legally bound to promote its broader 

approach to international criminal law.12

What Cooperation, If Any?

The absence of formal ties does not mean that there 

could not (and should not) be any interaction between 

NATO and the ICC. There are many cases where NATO 

has cooperated with other international organizations at the 

working level or even at the policy level, although using an 

ad hoc approach rather than establishing permanent formal 

ties. Such cooperation was even possible regarding politically contentious matters. For instance, although NATO and 

the Council of Europe (CoE) do not have formal interorganizational relations, they have nevertheless agreed on a 

mechanism whereby the CoE’s Committee for the Prevention of Torture can be granted access to detention facilities 

run by the Kosovo Force (KFOR) in Kosovo.13 Applying 

the lessons learned in this context to potential cooperation 

between NATO and the ICC could indeed be an option.

However, it may be noted that drafting the letter 

whereby NATO responded to the CoE request for access, by its Committee for the Prevention of Torture, 

to KFOR detention facilities took more than 2 years 

due to the consensus requirement for decisionmaking among the members of NATO. It would hence 

seem unlikely that agreement on a similar high profile 
www.ndu.edu/inss TRANSATLANTIC CURRENT No. 4 3 

commitment whereby NATO pledges support to the 

ICC can be reached in the immediate to near future.

That said, working-level cooperation on a case-by-case 

basis might be a more promising route to take. Apart from 

support regarding detentions and evidence, NATO could 

also provide protection to investigators and/or facilitate witness protection.14 If goodwill exists within both the ICC 

and NATO, their cooperation could leverage the positive 

experience regarding NATO’s interaction with the ICTY, 

and vice-versa. For those members of NATO that are states 

parties to the ICC statute, such cooperation might be a 

useful method to discharge their obligation to support the 

ICC.15 It is accepted practice that such an obligation can be 

discharged through action in the appropriate international 

organizations of which a state is a member. In addition, cooperation by NATO with the ICC can relieve its members 

from political pressure they may otherwise be exposed to, 

such as the disclosure of classified documents.16

It may be assumed that those members of NATO that 

are not parties to the ICC statute could constructively abstain from interfering with this method just as, for example, 

those members of NATO not supportive of the Libya campaign did in regard to Operation Unified Protector. The U.S. 

vote in favor of United Nations Security Council Resolution 

1970 (2011), which referred the situation in Libya to the 

ICC, may indicate that this assumption is not unrealistic.17

Conclusion

If reciprocal goodwill is allowed to grow, NATO may 

well take the ICC seriously despite the non-membership 

of the United States and Turkey in the latter, but with their 

full understanding. Arguably, NATO has demonstrated 

goodwill on its part through the conduct of operations by 

Operation Unified Protector. The targeting practice of this 

campaign suggests that NATO has given due respect to 

the ICC prosecutor’s move to seek an indictment against 

Qadhafi for crimes against humanity. It would seem counterintuitive had NATO not been able to take lethal action 

against Qadhafi who, as commander of his forces, was a 

lawful target. However, from a policy viewpoint it would 

not have demonstrated much wisdom had NATO really 

taken such lethal action. The noise made after Qadhafi 

was killed by the forces that captured him reinforces that 

point. Accordingly, despite the absence of substantial reporting, it may have been NATO policy to not put Qadhafi on its list of prioritized targets but, rather, to put him 

on the no-strike list.

While this “no-strike list theory” is merely a hypothesis based on the known facts, it nevertheless indicates 

that NATO may have laid solid ground for subsequent 

cooperation with the ICC. The manner in which the ICC 

prosecutor’s prospective report regarding the situation 

in Afghanistan deals with the conduct of hostilities by 

NATO and its members will indicate whether the ICC is 

indeed interested in trustful and sustainable cooperation 

with NATO, based on reciprocal goodwill and respect.

Consequently, if the right mechanism for cooperation 

between NATO and the ICC is developed and supported 

by political will, it could actually happen. If such cooperation 

were to evolve, it would boost transitional justice significantly.18 It is worthwhile recalling that NATO-led operations in 

the Balkans made a significant contribution to bringing the 

perpetrators of war crimes and crimes against humanity to 

justice. NATO’s support to transitional justice was part of a 

larger military effort to prevent ex- and would-be-belligerents from resuming armed conflict. This legacy demonstrates 

that prudent military action can complement the international community’s effort to break the cycle of impunity as 

a means for making peace durable. Cooperation between 

NATO and the ICC could be the next step in that direction.

Notes 1 The North Atlantic Treaty Organization (NATO)–led operations in Bosnia and Herzegovina were, in the order of their succession, 

the Implementation Force (1995–1996), Stabilization Force (SFOR) 

(1996–2004), and NATO Headquarters Sarajevo (since 2004).

2 NATO is the lead organization of the Kosovo Force since the 

summer of 1999.

3 For instance, the judgment in Prosecutor v. Furundzija (case 

no. IT-95-17/1-T), December 10, 1998, mentions that “The accused 

was detained by members of the multinational Stabilisation Force, 

hereafter ‘SFOR,’ acting pursuant to a warrant for arrest issued by the 

International Tribunal. The accused was immediately transferred to 

the International Tribunal and detained in its detention unit in The 

Hague, the Netherlands” (paragraph 3). While it is imprecise to speak 

of an arrest by SFOR—armed forces, not being law enforcement 

agencies, detain rather than arrest—this passage captures the essence 
4 TRANSATLANTIC CURRENT No. 4 www.ndu.edu/inss

of the NATO/International Criminal Tribunal for the former Yugoslavia cooperation regarding the detention of persons indicted for war 

crimes (PIFWCs). NATO has reported many cases where its forces 

detained PIFWCs. See, for instance, the Statement by former NATO 

Secretary-General Lord George Robertson, “SFOR Detains Person 

indicted for War Crimes,” October 25, 1999, available at <www.nato.

int/cps/en/natolive/opinions_27514.htm?selectedLocale=en>.

4 See “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal 

Republic of Yugoslavia,” available at <www.icty.org/x/file/About/

OTP/otp_report_nato_bombing_en.pdf>.

5 Louis Charbonneau, “ICC prosecutor eyes possible Afghanistan war crimes,” September 9, 2009, available at <www.

reuters.com/article/2009/09/09/us-afghanistan-warcrimes-idUSTRE58871K20090909>.

6 This preliminary examination led to the conclusion that by 

February 2006 the International Criminal Court (ICC) statute’s 

requirements for seeking authorization to initiate an investigation in the 

situation in Iraq had not been satisfied. See the Office of the Prosecutor 

response to communications received concerning Iraq, February 9, 2006, 

available at <www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/

Office+of+the+Prosecutor/Comm+and+Ref/Iraq/>.

7 See Article 15 (2) of the ICC statute.

8 In his “Statement to the United Nations Security Council on 

the situation in Libya, pursuant to United Nations Security Council 

Resolution (UNSCR) 1970 (2011),” November 2, 2011, the ICC 

prosecutor mentioned the existence of “allegations of crimes committed by NATO forces” (paragraph 18).

9 Jamie Davis, “Gaddafi family to file ICC war crimes complaint against NATO,” October 2011, available at <http://jurist.org/

paperchase/2011/10/gaddafi-family-plans-to-file-icc-war-crimescomplaint-against-nato.php>.

10 According to Lee Berthiaume’s news report, “ICC mulls probe 

into Canada’s treatment of Afghan detainees,” November 15, 2011, 

the ICC prosecutor may soon release a report that will address the 

question of whether a formal investigation should be launched into 

Canada’s treatment of Afghan detainees. According to the report, he 

observed that “[m]ost allegations . . . are against the Taliban,” available 

at <http://news.nationalpost.com/2011/11/15/icc-mulls-probe-intocanadas-treatment-of-afghan-detainees/>.

11 The ICC statute is the international agreement establishing the 

court, determining its organization, and defining its jurisdiction, including through its detailed provisions outlining the conduct amounting 

to war crimes, crimes against humanity, or genocide. The United States 

had initially signed the ICC statute but later withdrew its signature.

12 Under Article 17(1)(b)/(2) of the ICC statute, states parties 

have agreed that the ICC may try any case they have “decided not to 

prosecute” where this “decision resulted from the unwillingness . . . 

genuinely to prosecute.” As indicated by the ICC prosecutor’s remark in 

a documentary produced by Canadian filmmaker Barry Stevens regarding alleged war crimes in relation to Afghan detainees—that “he would 

investigate the issue if Canadian authorities didn’t” (see Berthiaume)—

it is not beyond the realm of the possible that a narrow approach to 

international criminal law may lead to issues with the ICC.

13 See Council of Europe press release 437, July 19, 2006, available at <https://wcd.coe.int/ViewDoc.jsp?id=1021371&BackColo

rInternet=F5CA75&BackColorIntranet=F5CA75&BackColorLo

gged=A9BACE>; for context, see Ulf Haeussler, “KFOR: Current 

Legal Issues,” Journal of International Law of Peace and Armed Conflict 

24/26sq, available at <www.ruhr-uni-bochum.de/ifhv/documents/

huvi/huv_2007/1_2007.pdf>.

14 Ulf Haeussler, “Witness Protection by Peace Missions,” in Law 

Enforcement within the Framework of Peace Support Operations, ed. Roberta Arnold (Leiden, The Netherlands: Martinus Nijhoff, 2008), 257.

15 This obligation stems from Article 86 of the ICC statute 

whereby “States Parties shall, in accordance with the provisions of 

this Statute, cooperate fully with the Court in its investigation and 

prosecution of crimes within the jurisdiction of the Court.”

16 According to Article 73 of the ICC statute: “If a State Party 

is requested by the Court to provide a document or information in its 

custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international 

organization, it shall seek the consent of the originator to disclose 

that document or information.” Article 93(9)(b) of the ICC statute 

requires states parties, when discharging of their obligation to cooperate regarding any ICC request that “concerns information, property 

or persons which are subject to the control of . . . an international 

organization by virtue of an international agreement” to “so inform 

the Court” that in turn “shall direct its request to the . . . international 

organization.” NATO being an international organization, these 

provisions would apply to documents bearing a NATO classification 

or marking; NATO might be asked to agree to disclosure or receive 

ICC requests for potential evidence.

17 The United States abstained from voting on UNSCR 1593 

(2005), which referred the situation in Darfur, Sudan, to the ICC although 

its former Secretary of State Colin Powell had used the word genocide

when publicly deploring the activities that eventually triggered the referral.

18 The notion of transitional justice refers to the effort of supporting a nation’s transition from armed conflict and/or repression with 

judicial means. It aims at denying impunity to the (major) perpetrators 

of genocide, crimes against humanity, and war crimes (armed conflict) 

or gross violations of human rights (repression) by way of bringing 

them to justice. Transitional justice may be coupled with truth and 

reconciliation efforts that may involve (limited) amnesty as a reward for 

disclosure of outrages that would otherwise never be revealed.

The Center for Transatlantic Security Studies within the 

Institute for National Strategic Studies provides research 

and policy advice to senior Department of Defense and 

other U.S. Government leaders through studies, research 

projects, and outreach and education programs. CTSS 

draws on its unique interface with U.S. and international 

governments and research institutions to provide timely 

and relevant policy recommendations.

The Transatlantic Current series presents original research by members of the CTSS resident scholars as 

well as nonresident subject matter experts. The opinions, 

conclusions, and recommendations expressed or implied 

within are those of the contributors and do not necessarily reflect the views of the Defense Department or 

any other agency of the Federal Government. Visit NDU 

Press online at www.ndu.edu/press.

Ambassador Robert Hunter

Director

Center for Transatlantic Security Studies

Francis G. Hoffman

Director

NDU Press

INSTITUTE FOR NATIONAL STRATEGIC STUDIES

Hans Binnendijk

Director

INSS