Afghanistan ratified the Rome Statute in 2003. Soon afterward, the OTP began receiving communications about international crimes being committed in Afghan territory. The OTP commenced a preliminary examination of the situation in Afghanistan in 2006 but did not begin regularly making information public until it began publishing annual reports of its preliminary examinations in 2011. The OTP’s early reports included references to “possibly abusive interrogation techniques” and “abusive techniques such as beatings, electric shocks, sleep deprivation, forced nudity and other forms of ill-treatment” against persons in the custody of international forces (as well as Afghan authorities); however, the references to detainee abuses grew more detailed with time. The early reports also noted allegations that military operations by international forces had resulted in civilian casualties, although they also highlighted the predominance of Taliban responsibility for attacks on civilians and that reports of civilian casualties from the operations of international forces had decreased over time. Later, the OTP concluded that “the information available does not provide a reasonable basis to believe that the war crime of intentionally directing attacks against the civilian population…has been committed” by forces supporting the Afghan government (including U.S. and other international forces).
Subsequent statements by the Prosecutor suggesting that she would move forward with an investigation of the Afghanistan situation generated significant concern within the Obama Administration. The matter remained under consideration until, shortly after the 2016 election in the United States, the Prosecutor announced that she would decide “imminently” whether to seek an authorization to proceed. The Prosecutor nevertheless did not move forward with an application to the Pre-Trial Chamber—a prerequisite to proceeding in the absence of a state or Security Council referral—until November 2017. The Prosecutor’s request for authorization focused first on crimes against humanity and war crimes allegedly committed by members of the Taliban (and the affiliated Haqqani Network), with the Prosecutor referring to “50,802 civilian casualties (17,700 deaths and 33,032 injuries) [that] were attributed to anti-government armed groups” through attacks often “committed with particular cruelty or in order to instil terror and fear among the local civilian population [and involving] [v]ictims [who] were deliberately targeted on a discriminatory basis.” The request next addressed allegations of war crimes by members of the Afghan security forces, including intelligence and police agencies, with the Prosecutor alleging that such crimes (in particular systematic torture) were committed “on a large scale.”
The crimes alleged to have been committed by Department of Defense (DOD) and Central Intelligence Agency (CIA) personnel, while serious, are substantially more limited than those alleged to be committed by the Taliban. Moreover, there are important differences in the Prosecutor’s presentation of allegations against the personnel of these two different agencies and the types of defenses that might be raised by each agency in response to these allegations. As such, they will be dealt with separately below.
(1) The Allegations Against DOD Personnel. To the extent that the Prosecutor’s request for authorization to investigate addresses DOD personnel, it is based on allegations of torture and other detainee abuse (principally in the period of 2003–2004) and not on allegations regarding combat operations by U.S. armed forces. And while any failure to adhere to the humane treatment requirements of international humanitarian law is serious, the scale of the alleged custodial crimes is self-evidently much smaller than the range of crimes alleged against the Taliban and Afghan security forces, with the Prosecutor contending that there was a reasonable basis to believe at least seventy-eight individuals (fifty-four by U.S. armed forces and twenty-four by CIA personnel) had been victims of potential war crimes. In contrast to the widespread nature of allegations of detainee mistreatment by Afghan security forces and the systematic nature of the CIA’s “enhanced interrogation” program, the Prosecutor acknowledged in respect of DOD personnel that the alleged mistreatment was “inflicted on a relatively small percentage of all persons detained by US armed forces…[and] also appear[s] to have occurred during a limited time period, after which the use of all such techniques by US armed forces worldwide was formally rescinded.” The Prosecutor also acknowledged that there was no “headquarters level” policy to approve such abuses, although the Prosecutor alleged that some of the abuses were committed “pursuant to authorized interrogation policies adopted locally.”
(2) The Allegations Against CIA Personnel. The allegations of CIA abuse are deeply troubling. The Prosecutor describes the range of torture and cruel, inhuman, and degrading treatment inflicted as part of the CIA’s rendition and enhanced interrogation program in Afghanistan and so-called CIA “black sites” located on the territory of European states that have ratified the Rome Statute (i.e., Poland, Romania, and Lithuania). This includes a list of thirteen “techniques” allegedly used individually or in combination and descriptions of their application in certain incidents in detail. And while the number of victims may have been small, the Prosecutor notes that the abuses were not isolated but were the product of a “policy to obtain actionable intelligence.” One need not be politically motivated to consider these crimes as deserving of investigation and accountability.
Following the Prosecutor’s submission of the application to commence an investigation, a Pentagon spokesman stated that an ICC investigation of U.S. personnel would be “unwarranted and unjustified” and that such an investigation would “not serve the interests of either peace or justice in Afghanistan.” In September 2018, then-National Security Advisor Bolton warned that the United States “will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court,” and threatened a series of measures “if the Court comes after us,” including denial of visas and potential criminal proceedings against ICC officials involved in the investigation or prosecution of Americans. On March 15, 2019, Secretary Pompeo announced “a policy of U.S. visa restrictions on those individuals directly responsible for any ICC investigation of U.S. personnel. This includes persons who take or have taken action to request or further such an investigation. These visa restrictions may also be used to deter ICC efforts to pursue allied personnel, including Israelis, without allies' consent.” It has been reported that the United States revoked the visa of ICC Prosecutor Fatou Bensouda pursuant to this policy.
On April 12, 2019, following an unusually long period of review, the Pre-Trial Chamber rejected the Prosecutor’s request for authorization to investigate. While it agreed that “there is reasonable basis to believe the that the incidents underlying the Request have occurred,” that they “may constitute crimes within the jurisdiction of the Court,” and that the alleged crimes were of sufficient gravity, it determined that an investigation in Afghanistan would not be “in the interests of justice” as chances of a successful investigation and prosecution were “extremely limited” (in part because the Prosecutor had been unable to secure cooperation from relevant states, implicitly referring to the United States, and in part because of the “complexity and volatility of the political climate still surrounding the Afghanistan situation”).
After this surprising outcome, President Trump issued a statement that recalled “the threat [the Court] poses to American national sovereignty” and vowed that any attempt to target U.S. personnel for prosecution “will be met with a swift and vigorous response.” He called the Pre-Trial Chamber decision “a major international victory…for the rule of law,” notwithstanding that the Court had in fact concluded that that there had been a sufficient showing that the crimes had been committed and that they had not been appropriately investigated or prosecuted. Declining to authorize an investigation because of the projected lack of cooperation from states implicated in the alleged crimes was controversial and had no precedent in the ICC’s earlier work. But the widespread discomfort with this decision was amplified by the fact that it came in the wake of what was viewed as strident attacks on the Court and by the Trump Administration’s subsequent triumphalism, with Secretary Pompeo explicitly linking the Court’s decision not to authorize an investigation with the United States' imposition of visa restrictions on ICC personnel.
In any event, the Prosecutor promptly appealed. The Appeals Chamber scheduled a three-day hearing for oral arguments, in which it invited interested states, academics, and organizations to participate as amici. The United States was not represented, but President Trump’s personal lawyer made an appearance in his capacity as counsel for an NGO and made arguments that in many respects mirrored U.S. objections. For its part, the Government of Afghanistan opposed the investigation, essentially urging the Court to defer its own investigation.
On March 5, 2020, the Appeals Chamber overturned the Pre-Trial Chamber’s decision. The Appeals Chamber decided that it was not the role of the Pre-Trial Chamber to inquire into the Prosecutor’s analysis of the “interests of justice” question and, indeed, that it was not even the Pre-Trial Chamber’s role to inquire into the OTP’s analysis of complementarity and gravity. On this basis, the Appeals Chamber authorized the Prosecutor to conduct an investigation covering alleged crimes in Afghanistan since May 1, 2003, the date on which Afghanistan became a party to the Rome Statute, “as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation in Afghanistan and were committed on the territory of other States Parties since 1 July 2002.”
Secretary Pompeo criticized the decision on the day it was released, stating that the United States “will take all necessary measures to protect our citizens from this renegade, so-called court,” and claiming that the decision was “all the more reckless for this ruling to come just days after the United States signed a historic peace deal on Afghanistan—the best chance for peace in a generation.” Two weeks later, he publicly identified two ICC staffers whom he claimed were “helping drive [the prosecutor’s] effort to use this court to investigate Americans,” and indicated that the next step could be to sanction them “and their family members” —a step critics called an act of “raw intimidation.” On June 11, 2020, President Trump issued an Executive Order in which he determined that ICC investigations in Afghanistan (or involving U.S. allies that were not Rome Statute parties) constituted “an unusual and extraordinary threat to the national security and foreign policy of the United States…” On that basis, he authorized sanctions (financial and visa restrictions) on any person (including Court officials) designated as having directly engaged in, materially assisted, sponsored, or provided support for, the investigation of U.S. personnel (or of the personnel of any U.S. ally who is not a party to the Court and does not consent). This latter language plainly suggested that the possibility of an investigation of the Palestinian situation (discussed below) provided an additional basis for these threats.
In a subsequent press event at which he was joined by the Secretary of Defense, the Attorney General, and the National Security Advisor—but not, notably, the Secretary of the Treasury—Secretary Pompeo stated that he was acting consistent with the request of more than three hundred members of Congress to support Israel against the ICC, labelled ICC action “a mockery of justice,” attacked the ICC for “botched prosecutions,” and insisted that the United States “cannot allow ICC officials and their families to come to the United States to shop and travel and otherwise enjoy American freedoms as these same officials seek to prosecute the defender of those very freedoms.” Many of these critiques were familiar, but the charges from the Administration officials went further and included assertions that “our adversaries are manipulating the ICC” by encouraging these allegations in a “blatant attempt to subvert justice and the mission of the ICC” (with Attorney General William Barr specifically mentioning Russia) and that the Justice Department had “credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels of the office of the prosecutor.” No details for these allegations were ever publicly articulated; nor were they deemed credible by interlocutors who were briefed by U.S. Government sources.
States Support ICC Against U.S. Sanctions Threat
In a statement following the issuance of the Executive Order authorizing sanctions, ten current and three incoming members of the UN Security Council
“reiterate[d] our commitment to uphold and defend the principles and values enshrined in the Rome Statute and to preserve its integrity and independence undeterred by any measures or threats against the Court, its officials and those cooperating with it. We note that sanctions are a tool to be used against those responsible for the most serious crimes, not against those seeking justice. Any attempt to undermine the independence of the Court should not be tolerated.
The International Criminal Court embodies our collective commitment to fight impunity for the most serious crimes under international law. By giving our full support to the Court and promoting its universal membership, we defend the progress we have made together towards an international rules-based order, of which international justice is an indispensable pillar.”
Similarly, sixty-seven states parties to the Rome Statute submitted a letter that made similar points and added that they “remain committed to an international rules-based order. The ICC is an integral part of this order and a central institution in the fight against impunity and the pursuit of justice, which are essential components of sustainable peace, security and reconciliation.”
The decision to authorize sanctions was subject to considerable criticism in various quarters in the United States, including by an American Bar Association resolution and a joint letter from 174 lawyers and legal scholars. A former Treasury Department senior adviser raised concerns that the use of sanctions against the ICC and its officials would “further weaken the once-robust trans-Atlantic bond that has in the past effectively imposed multilateral sanctions against common adversaries, including Russia, terrorists, WMD proliferators, and more." These steps also prompted numerous other states to reaffirm their support for the ICC (including the United Kingdom, which—as described in the Section on ICC Performance, Review, and Potential Reforms—had led recent criticism of the Court and calls for its reform). Sixty-seven Rome Statute parties quickly issued a statement calling the ICC an integral part of the “the international rules-based order” and an “essential component of the multilateral architecture upholding the rule-of-law,” and underscored their commitment “to preserve its integrity undeterred by any measures or threats against the Co urt, its officials and those cooperating with it." In an op-ed in Foreign Policy magazine, General Wesley Clark called the move a “tragic mistake” that put the United States in the company of “rogue states like the Burundi and the Philippines, which have threatened United Nations investigators and international prosecutors.” Said General Clark:
“Attacking international bodies like the ICC may feel like a cost-free way to score political points. But just as Americans benefit from the work of the World Health Organization and other multilateral institutions the Trump administration has turned against, the existence of tribunals to help enforce international law is an asset to U.S. security. Americans should continue to protect U.S. service members with a firm commitment to international law. And when Americans' actions are scrutinized, the U.S. government should have the confidence to react in a way that preserves the benefits of these institutions, protects U.S. personnel, and does justice to American values.”
On September 3, 2020, Secretary Pompeo announced the first sanctions under this Executive Order, freezing the assets of, and barring financial transactions with, ICC Prosecutor Bensouda and Phakiso Mochochoko, the head of the Prosecution’s Jurisdiction, Complementarity and Cooperation Division. International reaction was again sharply negative, with many arguing that this approach was counter-productive, undermines the effectiveness of U.S. arguments, alienates U.S. allies, shifts the international debate away from the ICC’s deficits to the extreme U.S. reaction, and erodes the ability of U.S. friends to argue in favor of reforms that would be in the U.S. interest. European Union High Representative Josep Borrell decried the measures as “unacceptable and unprecedented” and pledged that Europeans would “resolutely defend [the Court] from any attempts aimed at obstructing the course of justice…" A former State Department Sanctions Coordinator argued that “[i]t creates the reality, not just the impression, of the United States as a unilateralist bully with contempt for international law and norms." Four prominent human rights professors who are dual U.S. nationals—and hence potentially exposed to sanctions themselves as well as enforcement actions—and the Open Society Justice Initiative filed suit in the Southern District of New York alleging, among other things, that their First Amendment free speech rights were being abridged by the possibility of enforcement action if they provided support to the Prosecutor, even on cases unrelated to the United States. In January 2021, the judge issued a partial temporary injunction enjoining the issuance of sanctions against the plaintiffs, a move the Biden administration did not appeal. A second lawsuit was filed soon after on behalf of U.S. citizens who risk being penalized for working with the OTP.
On April 1, 2021, following a thorough review that had been announced in the early days of the Administration, President Biden revoked Executive Order 13928, under which the sanctions had been imposed, and the State Department terminated the policy on visa restrictions on ICC personnel. In announcing these steps, Secretary of State Antony Blinken emphasized that the United States “continue[s] to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations [and] maintain[s] our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties…” He went on to explain, however, that the Administration assessed the sanctions to be “inappropriate and ineffective” and that its concerns “would be better addressed through engagement with all stakeholders in the ICC process…” He also noted the ongoing review and reform process:
“We are encouraged that States Parties to the Rome Statute are considering a broad range of reforms to help the Court prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes. We think this reform is a worthwhile effort.”
For its part, the Government of Afghanistan took its own steps to respond to the opening of the investigation. On March 26, 2020, the government submitted a request under Article 18(2) of the Rome Statute for a deferral of the investigation, saying that it “is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts allegedly committed within the authorised parameters of the Situation in Afghanistan…” The OTP subsequently announced that, in view of its ongoing assessment of the request, in addition to practical restrictions owing to the global health crisis, the Prosecutor is not currently undertaking investigative activities in or about Afghanistan. As at the time of writing, there has been no public indication that any further steps have been taken.