{"id":6579,"date":"2020-11-23T12:30:42","date_gmt":"2020-11-23T12:30:42","guid":{"rendered":"https:\/\/kedid.uom.gr\/?p=6579"},"modified":"2023-07-20T19:12:16","modified_gmt":"2023-07-20T19:12:16","slug":"icc-jurisdiction-usa-afghanistan","status":"publish","type":"post","link":"https:\/\/kedid.uom.gr\/en\/icc-jurisdiction-usa-afghanistan\/","title":{"rendered":"Afghanistan, the USA, and the Jurisdiction of the International Criminal Court"},"content":{"rendered":"\t\t
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Katerina Karaterzi[1]<\/strong><\/a>, Alexandros Kyriakidis[2]<\/strong><\/a><\/em><\/p>

Introduction <\/strong><\/p>

In 2007, the Prosecutor of the International Criminal Court (ICC), Hon. Ms. Fatou Bensouda (at the time still serving<\/a> as Deputy Prosecutor, she was elected as Prosecutor in 2011), initiated<\/a> a preliminary examination in order to gather evidence and supportive material, pursuant to article 15 of the Rome Statute<\/a> (henceforth \u201cStatute\u201d), related to alleged war crimes and crimes against humanity during the armed conflict in Afghanistan, specifically from 1 May 2003 onwards. In November 2017, the Prosecutor submitted to the Pre-trial Chamber[3]<\/sup><\/a> of the ICC a request<\/a> for authorization to open an investigation, pursuant to article 15(3) of the Statute. Apart from members of the Taliban group and affiliated armed groups and Afghan National Security Forces, the Prosecutor also included in her request (par. 68-71<\/a>) members of the United States of America (US) armed forces and relevant agencies (par. 191 et seq<\/a>). The Prosecutor also asserted that the abettor of a criminal act, which is conducted in the territory of a state-party, may also be held responsible even without being physically present where the act takes place (par.47<\/a>), extending responsibility to US military personnel or governmental officials who were not physically present in Afghanistan.<\/p>

Procedure before the ICC <\/strong><\/p>

On 12 April 2019, the Pre-Trial Chamber rejected<\/a> the Prosecutor\u2019s request, not because of lack of jurisdiction by the ICC over US personnel, as may be expected considering that the US is not a state-party to the Statute.[4]<\/sup><\/a> On the contrary, the Chamber confirmed the jurisdiction of the ICC, based on the principle of territoriality, for criminal acts allegedly committed by US personnel in Afghanistan, which in fact ratified the Statute in early 2003 (par. 50)<\/a>. The Request was additionally found to be admissible since it fulfilled the requirements of article 17 of the Statute, regarding the principles of complementarity and gravity (par. 72-86<\/a>). First, no national investigations or prosecutions had been conducted or were ongoing against those who appear most responsible (par. 74<\/a>) and second, the nature, the duration and the consequences of the alleged crimes satisfied the gravity threshold (par. 81-86<\/a>). However, the Chamber decided that the commencement of an investigation under the current circumstances would not serve the interests of justice, because of, inter alia, deficiency of evidence, absence of meaningful cooperation by key authorities, and limited financial capacity of the ICC (par. 93-95<\/a>).<\/p>

The prosecutor appealed<\/a> against the decision before the Appeals Chamber. This was the first time since the establishment of the ICC that the Appeals Chamber adjudicated on a matter of authorization (par. 25<\/a>). In March 2020, the Appeals Chamber found that the Pre-trial Chamber did not correctly interpret the interests of justice and that the reasoning for their conclusion was cursory and speculative (par.49<\/a>). The Appeals Chamber reversed the decision, giving the Prosecutor authorization to investigate \u201calleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002\u201d (par. 79<\/a>). \u00a0Right after the decision, the government of Afghanistan sent a letter<\/a> to the Prosecutor requesting the deferral of the investigation, pursuant to article 18(2), claiming that relevant national proceedings have been or are still ongoing.<\/p>

US reaction<\/strong><\/p>

While the procedure was still before the Pre-trial Chamber, John Bolton, the US national security advisor, stated<\/a> in September 2018 that \u201cTrump administration would fight back the action of an illegitimate court and protect its citizens by any means\u201d. In March 2019, Mike Pompeo, the US Secretary of State, warned<\/a> the Prosecutor that the government would pose economic sanctions and VISA restrictions in case any investigation goes ahead. On 5 April 2019 the Prosecutor confirmed<\/a> that her VISA had been officially revoked.<\/p>

After the Appeals Chambe\u2019s decision to authorize the Prosecutor, on 11 June 2020, the US President issued the Executive Order no. 13928<\/a>, which considered that the Prosecutor\u2019s investigation into Afghanistan threatens US sovereignty and provided a list of sanctions against natural and legal persons (as further specified by the Secretary of State) who were engaged in relevant ICC actions (either directly, through investigation, arrest, prosecution, or indirectly, e.g. materially, financially, technologically), related to any case concerning US military personnel. On 2 September 2020, Mike Pompeo, announced<\/a> that both the Prosecutor Fatou Bensouda and ICC\u2019s Head of the Jurisdiction, Complementarity and Cooperation Division, Mr. Phakiso Mochochoko, were added in the Specially Designated Nationals and Blocked Persons<\/a> List of the US Treasury and, hence, subjected to the above sanctions, reiterating that the US has never accepted the ICC\u2019s jurisdiction.<\/p>

The issue of jurisdiction <\/strong><\/p>

Of particular interest is the issue of ICC\u2019s jurisdiction over nationals of states that are not parties to the Statute, or have not accepted the jurisdiction of the Court over a specific case or act ad hoc. The Prosecutor argued in her request<\/a> that since Afghanistan is a state party to the Statute since 2003, the Court may exercise jurisdiction over alleged crimes committed on Afghan territory, irrespective of the perpetrator\u2019s nationality, pursuant to article 12(2)(a) [5]<\/a> of the Statute (principle of territoriality; par. 44<\/a>).<\/p>

The expansion of ICC\u2019s jurisdiction over nationals of non-party states on the basis of territoriality is not new. In the case of South Ossetia in 2016, for example, the ICC claimed jurisdiction over acts committed by Russian military forces involved in the armed conflict during 2008 on Ossetia territory (par. 23 et seq.<\/a>), despite the fact that Russia has not ratified the Statute. However, South Ossetia is a region of Georgia, and Georgia is a state-party to the Statute. Similarly, in the case of Myanmar, the ICC authorized the Prosecutor in 2019 to investigate alleged crimes against the Rohingya people committed by police forces of Myanmar, even though Myanmar is not a state-party (par. 40, 45 et seq.<\/a>). Since the persecution started in Myanmar and ended in Bangladesh (state-party), the Court invoked the criterion of territoriality, especially considering the transboundary nature of crime and the nexus among the incidents (par. 56, 59<\/a>).<\/p>

The Prosecutor also drew a comparison of the relevant article 12(2)(a) with article 15bis(5) of the Statute about the crime of aggression. While the latter explicitly excludes from the ICC\u2019s jurisdiction nationals of states which have not ratified the Statute, the former lacks any similar clarification. She, therefore, argued that the wording of article 12(2)(a) was intentional, so that nationals of non-party states are included (par. 44<\/a>). The Prosecutor additionally mentioned a number of international treaties establishing jurisdiction over non-party states (e.g. Geneva Conventions, par. 45<\/a>), and underlined that the bilateral agreement<\/a> between US and Afghanistan, regarding criminal prosecution of non-Afghans in Afghanistan pursuant to article 98 of the Statute, does not affect the Court\u2019s jurisdiction, inasmuch as it refers only surrendering persons to the ICC, and not to the jurisdiction of the ICC.<\/p>

The Prosecutor and the ICC\u2019s argumentation in general, seems to be founded on two theoretical arguments<\/a>: the delegated universal jurisdiction<\/em> and the delegated territorial jurisdiction<\/em>. According to the first one, it is proposed<\/a> that certain crimes are of universal jurisdiction, based on<\/a> international (often customary) law, for all states. Therefore, as the courts of any state may<\/a> prosecute serious (mostly international) crimes regardless of the perpetrator\u2019s nationality, they can accordingly delegate part of this jurisdiction to the ICC. According to the second argument, each state may regulate and exercise<\/a> jurisdiction both over civil and criminal matters within its sovereign borders. With regard to criminal matters, for example, the citizens of US<\/a>, Australia<\/a>, United Kingdom<\/a>, and Greece (art. 5-11, Criminal Code<\/a>), during their stay in a foreign country, are subjected to the laws of that state, where they can be prosecuted, arrested, put on trial and convicted (see general rule<\/a>), unless their extradition is requested (a subsequent and very specific procedure). If a state can delegate that territorial jurisdiction to a court outside its own national judicial system, including an international court, then arguably the ICC may legitimately exercise that delegated jurisdiction over the territory of that state. In both theories described above, doubts have been expressed<\/a> not about the principles as such, but whether these state-based jurisdictions can be extended to delegation to an international judicial body, let alone one that seeks jurisdiction over nationals of states that do not recognize it.<\/p>

Concerning the, comparatively stronger, argument of territoriality, there has been no recent instance of an international criminal court basing its jurisdiction on this. For example, int the cases<\/a> of<\/u> Rwanda and Former Yugoslavia, the jurisdiction of the respective criminal courts was based on UN Security Council\u2019s resolutions. For the Nuremberg Trial, there Germany\u2019s consent. Perhaps the only example on delegation of territorial jurisdiction from a state to an international court, is that<\/a> of the Special Court for Sierra Leone, which in 2003\u00a0 convicted<\/a> the President of Liberal, Charles McArthur Ghankay Taylor, for his involvement in the Sierra Leone\u2019s civil war and relevant crimes.[6]<\/sup><\/a> After the conviction and the subsequent arrest warrant<\/a>, Liberia instituted proceedings<\/a> against Sierra Leone before the International Court of Justice, invoking the principle of state sovereignty and the immunity of its Head of State from the criminal jurisdiction of another state.[7]<\/sup><\/a><\/p>

Taylor also appealed<\/a> against the convicting decision before the Special Court and asked for the annulment of the arrest warrant, invoking the sovereign equality of states, governmental officials\u2019 immunity from criminal prosecution, and the non-international nature of the court (par. 6-8<\/a>). His request was rejected<\/a> on the basis that the court was legally established through an agreement between Sierra Leone and the UN Security Council and it was mandated to examine violations of international humanitarian law on the territory of Sierra Leone, irrespective of nationality (par. 37-40<\/a>). The immunity of states stems from the principle of sovereign equality, but this does not prevent officials from being prosecuted before international criminal courts (par. 50-53<\/a>). Taylor was eventually arrested<\/a> in 2006 and in 2012 was convicted<\/a> to a 50-years sentence.<\/p>

Conclusion<\/strong><\/p>

The jurisdiction of the ICC indeed remains a subject of controversy, both politically and theoretically, as it doubtlessly touches on really sensitive issues of international law and state sovereignty. This is reflected on the US resistance in recognizing the ICC\u2019s jurisdiction, but also on the relevant scholarship, in which competing theories over the ICC\u2019s jurisdictional basis can be found. The Prosecutor stated during an interview<\/a> for the imposed sanctions that she remains focused on her duty and that for her \u201cit\u2019s about the Law, not about the Power\u201d.<\/p>

***Originally published<\/a> on 23.11.2020 at the EU-funded COST Action “Global Atrocity Justice Constellations<\/a>” (JUSTICE-360)<\/strong><\/em><\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t

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[1]<\/a> CEDLAW Researcher, LLM in International and European Legal Studies, Aristotle University of Thessaloniki (Greece).<\/p>

[2]<\/a> CEDLAW Fellow and PhD candidate, Department of International and European Studies, Universitym of Macedonia (Greece).<\/p>

[3]<\/sup><\/a> Judicial division consisting of 3 judges per case, responsible<\/a>, inter alia, for authorizing the Prosecutor to open investigation, assessing whether there is enough evidence for a case to go to trial, and deciding on issues of jurisdiction and admissibility of a case.<\/p>

[4]<\/sup><\/a> US President Bill Clinton had signed<\/a> the Statute in 2000, but the it was never submitted to Congress for ratification. The US does not recognize<\/a> the ICC\u2019s jurisdiction on US citizens, and it has actually forbidden<\/a> any local, state or federal authority, agency or any court, from cooperating in any way with the ICC. However, Congress<\/a> has identified the possibility of ICC having jurisdiction over nationals and personnel of non-party states, something former US President Bill Clinton had expressed<\/a> concerns about. Thus, the US has built a safety net to protect its personnel on missions abroad, through guarantees<\/a> accompanying UN-sanctioned operations (e.g. Certification concerning US participation in Stabilization mission in Mali<\/a> in 2014), and through bilateral agreements with party-states to the Statute, which ensure jurisdictional immunity for the US personnel (e.g. art. 13 of Defence Cooperation agreement between US-Afghanistan<\/a> in 2014, as well as previous agreements<\/a>).<\/p>

[5]<\/a> In case the Prosecutor opens an investigation on her own initiative (art.15 of the Statute), the ICC exercises jurisdiction over the party-state \u201c… on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft \u201d.<\/p>

[6]<\/sup><\/a> Liberia ratified<\/a> the Rome Statute in 2004, one year after the President\u2019s prosection.<\/p>

[7]<\/sup><\/a> Pursuant to art. 38(5) of the Rules of the Court<\/a>,<\/u> Sierra Leone must first accept<\/a> the jurisdiction of the International Court of Justice over the specific dispute, which has not yet happened<\/a>.<\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":"

Katerina Karaterzi[1], Alexandros Kyriakidis[2] Introduction In 2007, the Prosecutor of the International Criminal Court (ICC), Hon. Ms. Fatou Bensouda (at the time still serving as Deputy Prosecutor, she was elected as Prosecutor in 2011), initiated a preliminary examination in order Read More …<\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":"","_links_to":"","_links_to_target":""},"categories":[111,2],"tags":[],"class_list":["post-6579","post","type-post","status-publish","format-standard","hentry","category-blog","category-research"],"_links":{"self":[{"href":"https:\/\/kedid.uom.gr\/en\/wp-json\/wp\/v2\/posts\/6579","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/kedid.uom.gr\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/kedid.uom.gr\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/kedid.uom.gr\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/kedid.uom.gr\/en\/wp-json\/wp\/v2\/comments?post=6579"}],"version-history":[{"count":5,"href":"https:\/\/kedid.uom.gr\/en\/wp-json\/wp\/v2\/posts\/6579\/revisions"}],"predecessor-version":[{"id":7901,"href":"https:\/\/kedid.uom.gr\/en\/wp-json\/wp\/v2\/posts\/6579\/revisions\/7901"}],"wp:attachment":[{"href":"https:\/\/kedid.uom.gr\/en\/wp-json\/wp\/v2\/media?parent=6579"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/kedid.uom.gr\/en\/wp-json\/wp\/v2\/categories?post=6579"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/kedid.uom.gr\/en\/wp-json\/wp\/v2\/tags?post=6579"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}