Policing Indefinite Detention

The United States Department of Defense’s (DOD) refusal to disclose the identities of the detainees at Guantánamo Bay allows the International Criminal Court (ICC) to take jurisdiction over the detainees and their cases under Article 17 of the Rome Statute of the International Criminal Court. Specifically, this article argues that the DOD’s refusal to identify the detainees is a decision not to prosecute the detainees; it demonstrated actual unwillingness of the United States to prosecute the detainees. The United States’ failure to initiate independent and impartial proceedings against the detainees in a manner consistent with an intent to bring the detainees to justice proves unwillingness within the meaning of the Rome Statute. Mostly because the United States refused to identify the detainees, the national judicial system was wholly unavailable to them. These factors, unwillingness to prosecute, unjustified delay, and inability to prosecute, combine to form ICC jurisdiction over the detainees’ cases under Article 17 of the Rome Statute. With this jurisdiction, the ICC can extradite, indict, and ultimately dispose of the detainees’ cases.