President Donald Trump authorized U.S. economic and travel sanctions against International Criminal Court (ICC) employees. This comes at the wake of an ICC investigation into whether Afghan/Taliban/American forces committed war crimes in Afghanistan.
Background
Afghanistan was elevated as a significant U.S. foreign policy concern in 2001 after the 9/11 attacks. United States, led a military campaign against Al Qaeda and the Taliban government in Afghanistan that harbored and supported attacks of 9/11. According to UN Assistance Mission in Afghanistan (UNAMA) Report 2019, more than 100,000 Afghans have been killed or wounded since 2009. In February 2020, USA and the Taliban forces signed an agreement. It resulted in cease-fire and USA to withdraw its forces from Afghanistan in a year’s time. In March 2020, the Appeals Chamber of ICC gave Chief Prosecutor Fatou Bensouda permission to proceed with investigation into alleged crimes committed in Afghanistan under the Rome Statute. The investigation entails:
- The Taliban and affiliated groups for crimes against humanity and war crimes;
- the Afghan National Security Forces for war crimes; and
- the armed forces of the United States of America (the ‘United States’) and its Central Intelligence Agency (the ‘CIA’) for war crimes.
Charges
Under Article 5 of the Rome Statue, ICC has jurisdiction on crimes against humanity, genocide, war crimes, and the crime of aggression. On the basis of preliminary evidence, the office of the prosecutor believes that US Armed Forces and CIA have committed the war crimes of:
- Torture and cruel treatment (article 8(2)(c)(i)),
- Outrages upon personal dignity (article 8(2)(c)(ii)) and
- Rape and other forms of sexual violence (article 8(2)(e)(vi)).
Evidence shows that USAF and CIA carried out interrogation at various ‘black sites’ using inhumane methods including but not limited to ‘waterboarding’, hooding under special conditions, stress positions, isolation and sensory deprivation, exposure to extreme temperatures, prolonged sleep deprivation, food deprivation, ‘rectal rehydration’ etc. These techniques fall under Art. 8(2) (c)-3 and 8(2)(c)-3 of Elements of Crime. The torture inflicted was against persons who were ‘hors de combat’, or civilians taking no active part in the hostilities.
The Trump administration has strongly opposed these charges. It has imposed sanctions on anyone connected with the investigation via an executive order. President Trump’s executive order introduces a national emergency in connection with a threat to US national security and foreign policy. It has denied the jurisdiction of ICC over US soldiers as USA has not ratified the Rome Statute.
Issue of Jurisdiction
On July 17, 1998, 120 nations voted to adopt the Rome Statute of the International Criminal Court (Rome Statute). 21 nations abstained from voting. Seven nations, including the United States, Israel, and China, opposed adoption of the Rome Statute. According to article 12 of the Statue ICC may exercise jurisdiction in a situation where crimes under Art. 5 were committed on or after 1 July 2002. Here, it says that, the State Party national committed the crimes, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court. Afghanistan is a party to the Rome Statute and thus ICC has jurisdiction over crimes committed on its soil by USA.
USA v. ICC
The United States opposed the Rome Statute. It had concerns about unfounded charges and politicized prosecution. USA has done everything it its power to undermine the authority of ICC like American Service-Members’ Protection Act (ASPA). The law prohibits US cooperation with the ICC. It gives the President the right to use any available means (even military force) to release persons detained or taken into custody by the International Criminal Court.
Ironically, according to President Clinton himself USA had played a major role in building the Court. It had also helped in transfer and detention of ICC fugitives like Bosco Ntaganda & Domic Ongwen. Now when it is occasion for USA’s accountability, it has termed ICC as a kangaroo court, set out to breach the sovereignty of USA.
Conclusion
Founded on the principle of complementarity, ICC is intended to complement national criminal systems. It prosecutes cases only when States are unwilling or unable to do so genuinely. The ICC embodies the principle of individual accountability. The justices at Nuremberg said: “crimes against international law are committed by men, not by abstract entities. Trump Administration’s actions reveal the hypocritical nature of US when it comes to its own accountability. International entities including OHCHR, ICC; states like UK, Netherlands etc have condemned this action. USA had declared ‘war on terror’ back in 2011, without any intention of abiding by the laws of war. It is equally answerable to the victims, like all other states it has held answerable to itself.
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