The Icc's Jurisdiction Over Afghanistan: Examining The Us Role

The International Criminal Court (ICC) has been investigating war crimes and crimes against humanity that allegedly took place during the war in Afghanistan since 2003. This includes alleged crimes committed by the US Armed Forces and the CIA in Afghanistan, Poland, Romania, and Lithuania. In 2020, the ICC authorised the investigation to officially begin. However, the US has refused to acknowledge that war crimes may have been committed by its nationals and has taken a hostile stance towards the ICC, refusing to cooperate and imposing sanctions on court officials. The ICC's investigation will likely be challenging due to a lack of cooperation from the US and other parties, as well as the court's limited investigative powers and resources.

US efforts to derail ICC investigations

The US has a history of opposing the International Criminal Court (ICC) and has long taken a hostile stance towards it. The US is not a member of the ICC and has shown resistance to investigations into its own nationals and allies, including Israel.

In 2002, one month after the ICC began operating, the US enacted the American Service-Members' Protection Act, which aimed to protect US personnel from international prosecution. The US also pursued bilateral agreements with other countries to prevent them from collaborating with the ICC.

In 2019, the US revoked the ICC prosecutor Fatou Bensouda's visa in response to the court's investigation in Afghanistan. The Trump administration also imposed sanctions on Bensouda and Phakiso Mochochoko, the Head of the Jurisdiction, Complementarity and Cooperation Division of the ICC. This was the first time the US had taken such action against officials of an international body.

The Trump administration also threatened the ICC with retaliatory steps if it investigated US or allied country citizens. In 2020, President Trump stated that the "United States will provide no support or recognition to the International Criminal Court. As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority."

In response to the ICC's investigation into war crimes in Afghanistan, the US issued an executive order condemning the court and imposed sanctions on ICC lawyers, judges, investigators, and journalists providing evidence of war crimes by US citizens and troops. The executive order also allowed for the freezing of US bank accounts and the revoking of US visas.

The US has also put pressure on the Afghan government to prevent an ICC investigation. In 2020, the Afghan government petitioned to "defer" the ICC investigation, citing that it would conduct its own national investigation.

Despite the US's efforts to derail the ICC's investigations, the court has made some progress. In 2020, the ICC appeals chamber authorized the court's prosecutor to open an investigation in Afghanistan. However, the investigation was paused when the former Afghan government requested the court to defer to its own investigations. In 2022, the ICC judges announced that the investigation could resume.

ICC jurisdiction over US citizens

The International Criminal Court (ICC) has jurisdiction over four main crimes: genocide, crimes against humanity, war crimes, and aggression. The ICC can prosecute these crimes if they are committed by a national of a member state or on the territory of a member state.

The US is not a member state of the ICC, but Afghanistan is. This means that US citizens may be subject to the ICC's jurisdiction as it investigates alleged crimes that took place in Afghanistan. This is because countries that ratify the Rome Statute are delegating their authority to prosecute certain grave crimes committed on their territory to an international court.

The ICC has asserted jurisdiction over alleged crimes committed by US armed forces and the Central Intelligence Agency (CIA) in Afghanistan, Poland, Lithuania, and Romania. These include alleged torture, cruel treatment, outrages on personal dignity, and some instances of rape.

The US government has said that it will not cooperate with the ICC and has threatened retaliatory steps against court staff and member countries should the court investigate US citizens. The US has also revoked the ICC prosecutor's visa and imposed sanctions on some ICC officials.

Despite the US's non-cooperation, the ICC can still investigate and prosecute US citizens. However, it would be challenging to develop a viable case and gain custody over any American the ICC sought to charge without the support of the US.

US refusal to acknowledge war crimes

The US has refused to acknowledge war crimes committed by its forces in Afghanistan, and has obstructed efforts by the International Criminal Court (ICC) to investigate these crimes. The ICC is the only international body with the authority to prosecute individuals for war crimes, crimes against humanity, and genocide.

The US has a history of non-cooperation with the ICC and has long taken a hostile stance towards the court. It is not a member of the ICC and has refused to ratify the Rome Statute, the court's founding treaty. In 2002, the US enacted the American Service-Members' Protection Act, which sought to protect US personnel from international prosecution. The US has also pursued bilateral agreements with other countries to prevent them from collaborating with the ICC.

In 2019, the ICC's chief prosecutor, Fatou Bensouda, requested to open an investigation into alleged war crimes committed by US forces in Afghanistan. This request was initially rejected by the pretrial chamber, which cited, among other things, the political climate surrounding the probe and a lack of cooperation from US and Afghan authorities. However, after an appeal, the investigation was authorised to proceed in March 2020.

In response to the investigation, the Trump administration imposed sanctions on Bensouda and another senior ICC official, Phakiso Mochochoko, and issued an executive order effectively criminalising anyone who works at the ICC. The US also revoked Bensouda's visa and imposed visa restrictions on ICC lawyers and investigators. These actions were widely criticised by human rights groups and legal experts.

Despite the investigation being authorised to proceed, the US continued to refuse to cooperate. The Biden administration later lifted the sanctions on ICC officials but maintained that it would not cooperate with the investigation.

The US has argued that it has already investigated many of the accusations made by the ICC and does not accept the court's jurisdiction over its nationals. However, human rights groups and legal experts have criticised this stance, arguing that the US has a responsibility to investigate and prosecute war crimes and that the ICC should only be involved as a court of last resort when a country is unwilling or unable to do so itself.

The US refusal to acknowledge war crimes and obstruct the ICC investigation has been seen as a form of double standards and hypocrisy, especially in light of the US's support for ICC investigations into the actions of other countries, such as Israel and Myanmar. It has also been criticised for undermining the credibility and effectiveness of the ICC and setting a precedent for other powerful countries to evade accountability for war crimes.

ICC investigation focus on Taliban and ISKP

The International Criminal Court (ICC) has been investigating war crimes and crimes against humanity committed during the war in Afghanistan since 2003. The investigation was authorised to officially begin in March 2020.

In September 2021, the ICC's Chief Prosecutor, Karim Khan, requested to resume the investigation, focusing on the actions of the Taliban and the Islamic State Khorasan Province (ISKP). Khan stated that the Taliban's takeover of Afghanistan meant war crimes were no longer likely to be investigated properly. He also cited the ICC's limited resources and the need to focus on cases most likely to result in convictions as reasons for narrowing the focus of the investigation.

Khan's decision to deprioritise the investigation into American forces and the CIA has been criticised by human rights groups and victims of abuses, who argue that it creates a double standard and reinforces a hierarchy of victims. They also question whether the alleged US crimes are lesser in terms of gravity and scale than those perpetrated by the Taliban or ISKP, and whether alleged victims of US crimes are any likelier to see justice in domestic courts.

The US is not a member of the ICC and has vehemently opposed the court's jurisdiction over its nationals. Under the Trump administration, the US imposed sanctions on ICC officials and threatened retaliatory steps if the court investigated US or allied country citizens. The Biden administration later lifted these sanctions but continues to disagree with the ICC's jurisdiction over US personnel.

US sanctions against ICC officials

The US has a complex and often hostile relationship with the International Criminal Court (ICC). The US is not a member of the ICC, but successive US administrations have both supported and opposed the court's work.

In 2002, the US enacted the American Service-Members' Protection Act, which sought to protect US personnel from international prosecution. The US has also pursued bilateral agreements with other countries to pressure them not to collaborate with the ICC.

In 2019, the US revoked the visa of the ICC's chief prosecutor, Fatou Bensouda, in retaliation for a potential investigation into war crimes committed by US forces in Afghanistan. The Trump administration also imposed sanctions on Bensouda and another senior ICC official, Phakiso Mochochoko, in 2020. These sanctions were lifted by the Biden administration in 2021.

The sanctions included asset freezes and travel bans, and were authorized by Executive Order 13928, which declared a national emergency and asserted that the ICC's investigation into US personnel threatened national security. The executive order also allowed for sanctions to be applied on a "case-by-case basis" in relation to ICC investigations of US personnel or personnel of US allies.

The sanctions had a direct and indirect impact on the work of the ICC, but not as significantly as the US had hoped. The ICC affirmed jurisdiction over the Palestine Situation in 2021 and announced the opening of an investigation. However, civil society organizations, investigators, lawyers, and victims had to weigh their interactions with the ICC against the threat of inclusion on the sanctions list or being subject to civil and criminal penalties.

The Biden administration has stated that it will work with Congress on an appropriate response to the ICC's request for arrest warrants for Israeli leaders over the Gaza war. While the US has supported past prosecutions, including the ICC's decision to issue an arrest warrant for Russian President Vladimir Putin over the war in Ukraine, it does not support the court's jurisdiction over US personnel.

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