On March 5th, 2020, the Appeals Chamber of the International Criminal Court (ICC) authorized Prosecutor Fatou Bensouda to investigate into alleged crimes against humanity and war crimes committed in Afghanistan and other States Parties to the Rome Statute. The actors include the Taliban and their affiliated Haqqani Network, Afghan forces, the US armed forces, and members of the US Central Intelligence Agency.[1] This is a significant step for the development of international law and the pursuit for international justice.
Background
The Appeals Chamber’s important decision came after the Prosecutor’s appeal of the Pre-Trial Chamber’s refusal to authorize the investigation. On April 12th, 2019, the Pre-Trial Chamber stunned the world by unanimously rejecting the Prosecutor’s request to investigate the alleged crimes in Afghanistan because it “would not serve the interests of justice.”[2] In the days leading up to the Pre-Trial Chamber’s decision, the US revoked Prosecutor Fatou Bensouda’s entry visa, and voiced its strong opposition to the proposed investigation. Secretary of State Mike Pompeo claimed that “[t]he ICC is attacking America’s rule of law.”[3] He also stated that, “If you’re responsible for the proposed ICC investigation of US personnel in connection with the situation in Afghanistan, you should not assume that you will still have or get a visa, or that you will be permitted to enter the United States.” “We’re prepared to take additional steps, including economic sanctions if the ICC does not change its course,” he added.[4]
The Appeals Chamber found that the Pre-Trial Chamber had made an error and amended the Pre-Trial Chamber’s decision, “to the effect that the Prosecutor is authorised to commence an investigation ‘in relation to alleged 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’.”[5] The Prosecutor in her request to conduct the investigation stated that she had a reasonable basis to believe that detained persons in Afghanistan, Poland, Romania, and Lithuania – all States Parties to the Court – were “subjected to torture, cruel treatment, outrages upon personal dignity, rape and/or sexual violence” by US armed forces and members of the CIA.[6]
Lately, on March 17th, 2020, Secretary of State Pompeo responded to the Appeals Chamber’s decision by threatening two staff members of the Court. He told reporters that, “It has recently come to my attention that the chef de cabinet to the prosecutor, Sam Shoamanesh, and the head of jurisdiction, complementarity, and cooperation division, Phakiso Mochochoko, are helping drive ICC prosecutor Fatou Bensouda’s effort to use this court to investigate Americans. I’m examining this information now and considering what the United States’ next steps ought to be with respect to these individuals and all those who are putting Americans at risk.”
“We want to identify those responsible for this partisan investigation and their family members who may want to travel to the United States or engage in activity that’s inconsistent with making sure we protect Americans,” he continued.[7]
Significance
This is a significant step in international justice because for the first time, the US is subject to investigations of alleged war crimes by the International Criminal Court. To understand how noteworthy this development is, it is important to first put it in a historical context.
The Court has been criticized for inappropriately targeting only African nations.[8] At the time of this writing, all of the Court’s 27 cases are situations in Africa.[9] In addition, there are 13 situations opened for investigations, 10 of which are in Africa and 3 in Georgia, Bangladesh/Myanmar, and Afghanistan.[10] But war crimes, crimes against humanity, genocide, and the worst atrocities are committed by actors in not only third world states, but also western and developed countries. In fact, history has shown that it is the most powerful nations who commit the most atrocious crimes, and it is they who often escape accountability. The Court’s legitimacy is questioned when it cannot prosecute powerful actors.
The blame cannot solely rest on the Court. The establishment of the Court was a remarkable feat. The international community came together and created the Court eighteen years ago with near universal jurisdiction and the power to prosecute individuals for serious international crimes. But, the Court exists within an international structure of inequality that is haunted with legacies of colonialism.
Before the UN Charter was established, powerful states colonized and brutalized weaker ones with impunity. After the Second World War, international law took a huge step forward. The UN Charter was ratified in 1945 with more teeth than its predecessor, the League of Nations. Every state was recognized as sovereign under the Charter. The Nuremberg trials that took place after the War were the first instance where individuals were prosecuted for international crimes. The Universal Declaration of Human Rights was adopted in 1948, recognizing individuals as actors under international law whose rights shall be protected. And, a wave of decolonization seized the world.
All of these developments created hope for a more peaceful world. Yet nations were far from equal to one another and atrocities were still being committed. The balance of power that emerged after the Second World War remained basically the same with political, military, and economic power consolidating amongst the West – the old colonial powers. What changed was the directness and degree of oppression. Within this new yet familiar world order, we witnessed, among many atrocities, the My Lai Massacre and the invasion of Vietnam, the bombing of Cambodia, the No Gun Ri Massacre and the Korean War, the Highway of Death and the Gulf War, Abu Ghraib and the invasion of Iraq, and the invasion of Afghanistan.
The Court’s structure was set up within this unequal and neocolonial world order. Its jurisdiction is limited to only crimes within its jurisdiction that were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court. A situation can also be referred by the United Nations Security Council.[11] 123 countries are States Parties to the Court.[12] However, among the five permanent members of the United Nations Security Council, China, Russia, and the US have not fully accepted the Court’s jurisdiction.[13]
I’m not naïve to think this means there will be full accountability, international justice, or world peace. Moreover, this is just the US, and there are numerous states and actors who have yet to be prosecuted. And, in this situation alone, there are still many obstacles left until this investigation evolves into a case before the Court. For example, the Court will have to deal with how to bring any US suspect to The Hague. In 2002, only one year after the US launched its invasion of Afghanistan, President George W. Bush signed into law the American Service-Members’ Protection Act, also called the “Hague Invasion Act.” This law authorizes the US president to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”[14]
Nevertheless, the Appeals Chamber’s ruling is a step in the right direction for international law. Just like the Universal Declaration of Human Rights, the Geneva Conventions, the Convention on the Elimination of All Forms of Discrimination Against Women, the establishment of the Court itself, and many other important international legal developments, every inch must be fought for. We’ve come a long way since nations were able to colonize and brutalize with impunity, and we still have a long way to go before we’re able to achieve a just world where all are equal and accountable for their crimes.
Sothie Keo is an international lawyer and Legal Officer for the Civil Party Lead Co-Lawyers Section of the Extraordinary Chambers in the Courts of Cambodia.
[1] Afghanistan: ICC Appeals Chamber authorises the opening of an investigation, International Criminal Court, https://www.icc-cpi.int/itemsDocuments/200305-afghanistan-q_a-ENG.pdf; see also The Prosecutor of the International Criminal Court, Fatou Bensouda, requests judicial authorisation to commence an investigation into the Situation in the Islamic Republic of Afghanistan, International Criminal Court, https://www.icc-cpi.int/Pages/item.aspx?name=171120-otp-stat-afgh#_blank.
[2] ICC judges reject opening of an investigation regarding Afghanistan situation, International Criminal Court, https://www.icc-cpi.int/Pages/item.aspx?name=pr1448; see also Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, International Criminal Court, Pre-Trial Chamber, https://www.icc-cpi.int/CourtRecords/CR2019_02068.PDF.
[3] US revokes ICC prosecutor’s entry visa over Afghanistan probe, Al Jazeera, https://www.aljazeera.com/news/2019/04/revokes-icc-prosecutor-entry-visa-afghanistan-probe-190405062415801.html.
[4] US revokes visa of International Criminal Court prosecutor, BBC, https://www.bbc.com/news/world-us-canada-47822839.
[5] Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan, International Criminal Court, Appeals Chamber, https://www.icc-cpi.int/CourtRecords/CR2020_00828.PDF, page 3.
[6] Public redacted version of “Request for authorisation of an investigation pursuant to article 15,” International Criminal Court, Office of the Prosecutor, https://www.icc-cpi.int/CourtRecords/CR2017_06891.PDF, para. 189.
[7] Secretary Michael R. Pompeo’s Remarks to the Press, US Department of State, https://www.state.gov/secretary-michael-r-pompeo-remarks-to-the-press-6/.
[8] Africa Question: Is the International Criminal Court (ICC) targeting Africa inappropriately?, ICC Forum, https://iccforum.com/africa.
[9] Cases, International Criminal Court, https://www.icc-cpi.int/Pages/cases.aspx.
[10] Situations, International Criminal Court, https://www.icc-cpi.int/pages/situation.aspx.
[11] How the Court works, International Criminal Court, https://www.icc-cpi.int/about/how-the-court-works/Pages/default.aspx#legalProcess.
[12] The States Parties to the Rome Statute, International Criminal Court, https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.
[13] The States Parties to the Rome Statute, International Criminal Court, https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.
[14] American Servicemembers Protection Act of 2002, https://legcounsel.house.gov/Comps/American%20
Servicemembers’%20Protection%20Act%20Of%202002.pdf, page 8.