The International Criminal Court (ICC) Prosecutor, Fatou Bensouda, has decided to request authorization from ICC judges to commence a formal investigation into alleged war crimes and crimes against humanity linked to the conflict in Afghanistan. Allegations that U.S. military and CIA personnel committed acts of torture and other human rights abuses in connection with this conflict would presumably be deemed within the scope of such an investigation, if authorization is granted by the judges of the ICC's pre-trial chamber. War crimes and crimes against humanity allegedly committed by the Taliban and al Qaeda on Afghan territory would also be subjects of the investigation. The ICC would base its assertion of jurisdiction on the fact that Afghanistan is a State Party to the 1998 Rome Statute, the treaty under which the ICC was established. The ICC would argue that, irrespective of the fact that the United States is not a State Party to the Rome Statute itself, the ICC would have the authority to prosecute any war crime or crime against humanity committed by anyone - including U.S. personnel - within the territory of Afghanistan or of any other State Party to the Rome Statute.
The ICC prosecutor is acting on her own in requesting permission to proceed with a formal investigation pertaining to Afghanistan, after having conducted an informal examination of evidence collected by the prosecutor's office and issuing preliminary examination reports over the last several years. In addition to chronicling widespread and systematic attacks against Afghanistan's civilian population by the Taliban and its allies, the prosecutor office's last preliminary examination report concluded that there was a reasonable basis to believe that U.S. armed forces and CIA personnel committed acts of torture, cruel treatment, and “outrages upon personal dignity” within the territory of Afghanistan between May 1, 2003 and December 31, 2014.
Although Ms. Bensouda is convinced that there is enough evidence to warrant the opening of a formal investigation, Afghanistan, the State Party most affected by any alleged crimes within its territory, has pointedly not asked for such an investigation. Nor has any other State Party, as far as we know. In the absence of such a State Party request or a referral by the United Nations Security Council to the ICC (as happened in the case of Libya), Ms. Bensouda was required to seek approval of the judges of the ICC's pre-trial chamber before undertaking her formal investigation.
To the extent that Ms. Bensouda seeks to investigate and possibly prosecute any U.S. military or CIA personnel for their actions while serving in Afghanistan, she is violating a key provision of the Rome Statute itself (Article 17), which defers to each sovereign nation’s right to exercise its own national jurisdiction over such cases. Only if a nation is either unwilling or unable to proceed with a prosecution, even though warranted by the facts of the case, can the ICC step in. The U.S.’s record in Afghanistan and elsewhere where its troops are serving is stellar when it comes to holding them accountable for wrong-doing. For example, the U.S. Army court-martialed and convicted a U.S. Army Sgt. of murdering 16 Afghan civilians, mostly women and children. He was sentenced to life in prison without the possibility of parole.
As noted above, the United States is not a State Party to the Rome Statute. The ICC prosecutor has no business deciding whether the U.S. civil courts and military tribunals are adequate to prosecute any cases of alleged wrong-doing against U.S. personnel. The U.S. judiciary is responsible for acting in accordance with the U.S. Constitution, and does not answer to an international court acting pursuant to a treaty of which the United States is not a member. In the case of Afghanistan, moreover, the United States and Afghanistan have entered into a separate bilateral security agreement. Article 13 of that agreement states:
“Afghanistan, while retaining its sovereignty, recognizes the particular importance of disciplinary control, including judicial and non-judicial measures, by the United States forces authorities over members of the force and of the civilian component. Afghanistan therefore agrees that the United States shall have the exclusive right to exercise jurisdiction over such persons in respect of any criminal or civil offenses committed in the territory of Afghanistan… Afghanistan and the United States agree that members of the force and of the civilian component may not be surrendered to, or otherwise transferred to, the custody of an international tribunal or any other entity or state without the express consent of the United States.”
The United States would not have continued to risk the lives of its personnel by deploying them to Afghanistan without an assurance that the United States would have “the exclusive right to exercise jurisdiction” over them with regard to any criminal or civil offenses they are accused of committing within Afghanistan. In effect, Afghanistan’s granting of such exclusive jurisdiction to U.S. tribunals, despite being a State Party to the Rome Treaty, deprives the ICC of any jurisdictional basis to pursue a case against U.S. personnel operating in Afghanistan in the absence of a UN Security Council referral.
The United States has gone on record stating that the ICC would be overstepping its authority if it proceeds with a formal investigation, let alone undertaking any further prosecutorial action against U.S. personnel in connection with the conflict in Afghanistan. In remarks to the UN Security Council on November 8th, Ambassador Michele J. Sison, U.S. Deputy Permanent Representative to the United Nations, said as follows:
“The United States believes that any ICC investigation or other activity concerning U.S. personnel is wholly unwarranted and unjustified. The United States is deeply committed to complying with international law and has a robust national system of investigation, accountability, and transparency that is among the best in the world. The United States has a longstanding and continuing objection in principle to any ICC assertion of jurisdiction over U.S. personnel.”
I asked ICC Prosecutor, Fatou Bensouda, for her response to Ambassador Sison’s objection as Ms. Bensouda was exiting the UN Security Council chamber, where she had spoken earlier about ongoing ICC initiatives regarding Libya. She declined to answer my question. At least when it comes to Libya, she is operating on the basis of a UN Security Council referral. Here, in trying to justify ICC jurisdiction over U.S. citizens for certain alleged crimes even though the U.S. is not a party to the Rome Statute, she claims that U.S. courts and tribunals have not taken appropriate action. That represents a blatant violation of U.S. national sovereignty. If approved by the ICC judges, the ICC prosecutor would have free rein to subordinate U.S. constitutional guarantees of ordered liberty, including separation of powers, due process, the right to trial by jury, and protection against double jeopardy, to an international court that has none of these fundamental protections. The Trump administration cannot allow this to happen.