The Appeals Chamber of the International Criminal Court (ICC) in The Hague has ruled that the court’s prosecutor, Fatou Bensouda, can finally proceed—following a preliminary examination of more than a decade—with a formal investigation into atrocities allegedly committed during the armed conflict in Afghanistan. Bensouda contends that some of those crimes were committed by U.S. armed forces and CIA personnel. The decision has sparked a strong rebuke from U.S. officials, who denounce what they call a “renegade” court.
What did the Appeals Chamber decide?
The unanimous judgment reversed an earlier decision by the Pretrial Chamber to dismiss the prosecutor’s motion to launch an investigation into the Afghanistan situation. It was the first time the Appeals Chamber had been seized with reviewing a Pretrial Chamber decision [PDF] of this nature. The five appeals judges—from Canada, Peru, Poland, Uganda, and the United Kingdom—rejected the lower chamber’s view that an investigation of the Afghanistan situation would not serve “the interests of justice.” The Appeals Chamber concluded that the governing treaty of the ICC, the Rome Statute [PDF], does not authorize the Pretrial Chamber to use its discretion to determine “the interests of justice” when the prosecutor seeks approval for an investigation. The judges ruled that there is a reasonable factual basis to proceed and that potential cases do fall within the ICC’s jurisdiction.
Additionally, the Appeals Chamber broadened the prosecutor’s scope of investigation to include criminal acts she might discover while further investigating the Afghanistan situation.
What are the alleged crimes by the different parties?
The prosecutor’s investigation centers on alleged crimes against humanity and war crimes committed by the Taliban and affiliated armed groups as well as by Afghan National Security Forces in Afghanistan since May 1, 2003, when that country joined the ICC.
The prosecutor has focused on the Taliban’s crimes against humanity of murder, imprisonment or other severe deprivation of physical liberty, and persecution against identifiable groups of civilians, including on political and gender grounds. Taliban actions are believed to have resulted in tens of thousands of civilian casualties, and the prosecutor will seek to identify Taliban leaders who orchestrated the killing and wounding of so many civilians.
The Afghan security forces are being investigated for several war crimes against hundreds of civilians: torture and cruel treatment; outrages upon personal dignity, such as humiliating and dehumanizing abuses; and sexual violence.
The U.S. armed forces and CIA are now under investigation for war crimes against around eighty victims who allegedly suffered torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence. There are more than fifty victims of such crimes allegedly committed by the U.S. military in Afghanistan in 2003–04. Another twenty-four people detained during the conflict claim to be victims of such alleged crimes by the CIA not only in Afghanistan but at CIA “black sites”—secret locations where covert actions, such as interrogations, can take place—in Lithuania, Poland, and Romania, again primarily in 2003–04 but in some cases stretching back to mid-2002.
Since the United States is not a state party to the Rome Statute, how can the investigation against its forces proceed?
The United States signed the Rome Statute on December 31, 2000, at the end of the Bill Clinton administration. But the Senate never ratified the treaty due to the strong opposition by the George W. Bush administration.
The ICC’s jurisdiction is triggered when genocide, crimes against humanity, or war crimes occur on the territory of an ICC member state or when a national of a state party commits such a crime. According to a 2014 report [PDF] by the U.S. Senate Select Committee on Intelligence, which the prosecutor draws upon, U.S. military and intelligence personnel committed torture on Afghan territory as well as on the territory of other parties to the Rome Statute—namely Lithuania, Poland, and Romania—in regard to victims associated with the Afghan conflict. The prosecutor relied on open-source information describing U.S. efforts to investigate crimes allegedly committed by U.S. personnel in connection with the Afghanistan situation and found those efforts, or the lack thereof, unconvincing.
The U.S. government argues that nonparty state nationals do not fall under the ICC’s jurisdiction even if they commit atrocity crimes on the territory of a state party, such as Afghanistan or the three European nations. But that issue was not on appeal and therefore the Appeals Chamber did not adjudicate arguments challenging coverage of U.S. nationals. The Pretrial Chamber had ruled that U.S. nationals responsible for such crimes are subject to the court’s jurisdiction under these circumstances.
The ICC focuses on crimes by leadership, not actions taken by mid- and low-level forces or personnel, so the likely targets of investigation will be Taliban leaders, Afghan government and military leaders, and top U.S. officials who planned or authorized the alleged crimes under the George W. Bush administration.
However, since the United States is not a member of the ICC, Washington will be under no legal obligation to cooperate with any investigation by the court. U.S. Secretary of State Mike Pompeo has already made it clear that Washington will not cooperate. Without such cooperation, particularly regarding former officials who reside in the United States and are thus outside the reach of ICC arrest warrants (unless they travel to ICC states), it could be very difficult for the prosecutor to establish sufficient evidence to charge and then arrest U.S. suspects.
Is there a chance of reprisal by the United States?
The uproar in Washington has been swift. “This is a truly breathtaking action by an unaccountable political institution, masquerading as a legal body,” Pompeo said. “We will take all necessary measures to protect our citizens from this renegade, so-called court.” In April 2019, Pompeo, mirroring the strong anti-ICC views of then National Security Advisor John Bolton, denied a U.S. visa to Prosecutor Bensouda. (She can still visit UN headquarters in New York City on business.)
It will be no surprise if the Trump administration now denies U.S. access to her staff and judges who are seen as having issued decisions that run counter to U.S. interests. Other retaliatory measures, such as freezing personal assets in the United States of court officials, could follow. Pompeo could also seek to dissuade other governments from cooperating with the court.
On Capitol Hill, Republican Senator Ted Cruz vowed to introduce a resolution calling on the UN Security Council to bar the ICC from prosecuting nationals of nonparty states. While China, Russia, and the United States never joined the ICC, the two other permanent members of the Security Council—France and the United Kingdom—are long-standing members of the ICC and would be difficult to persuade to politically smack down the Appeals Chamber. Further, even if the Security Council were to intrude on the court’s jurisdiction in this manner, the question would remain whether it has the legal authority to do so.
What effects could this proceeding have on other major-power forces deployed in conflict zones?
The United States’ allies in the North Atlantic Treaty Organization (NATO) are all members of the ICC, with the exception of Turkey. U.S. military deployments occur on Syrian territory, also a nonparty. Aside from the United States, the only other major power that deploys its military forces outside its territory is Russia. China, Egypt, India, Indonesia, and Pakistan deploy forces outside their territories strictly for UN peacekeeping operations. The interests of these nonparty states to avoid exposing their nationals on the territory of ICC members to the rules of international criminal justice may be debated in the Security Council, particularly for peacekeeping missions, but otherwise will be of limited interest to the 123 nations that are members of the court. After all, ICC members want legal protection from atrocity crimes that could be committed by nationals of such powerful countries on their own territories.
Editor’s note: The author participated in this case before the Appeals Chamber as an amicus curiae and argued before the court on December 6, 2019.