By Millicent Zighe
The United States has come under sustained condemnation in recent weeks for its decision to authorise financial sanctions against staff of the International Criminal Court (ICC) because of an investigation into American officials’ possible role in alleged crimes in Afghanistan.
Scores of countries, among them allies of the US that also have
troops in Afghanistan, issued a joint statement condemning the US announcement
made on June 11. Before the joint statement, some of those countries had made
individual statements condemning the US decision.
More than 180 American lawyers and legal scholars and several
civil society organizations have also condemned the US decision in recent weeks.
In a rare joint statement made
on June 25, Special Rapporteurs and other independent human rights experts appointed
by the United Nations Human Rights Council also condemned the US decision. ICC
President Chile Eboe-Osuji and Prosecutor Fatou Bensouda have separately spoken
to several media outlets, including American news organisations, affirming the
court’s independence and criticizing the sanctions decision.
On June 11, the US announced it
would impose financial sanctions on any ICC staff member involved in
investigating American officials or officials of American allies. In the same
announcement, the US said it was widening the scope of visa bans on ICC
officials it had previously announced to include family members of those ICC
This was the second time in more than a year that the US has
announced measures against ICC officials. In addition to these measures, several
senior US government officials, including President Donald Trump, have made
statements bashing the ICC since September 2018.
The US announcement of financial sanctions against ICC officials
followed the Appeals Chamber’s decision in March this year to allow the Office
of the Prosecutor (OTP) to open an investigation into war crimes and crimes against
humanity that may have been committed in Afghanistan since May 2003.
Afghanistan has been a member of the ICC since May 2003 but it
has not referred any case to the court. This is why the OTP has sought the
permission of ICC judges to launch an official investigation. Seeking and getting
the authorisation of judges is another route the OTP can use to investigate
alleged crimes in a member state.
The OTP’s investigation is focused on any alleged crimes the
Taliban and its affiliates may have committed; any alleged crimes Afghan
security and intelligence officials may have committed; and any alleged crimes American
military and intelligence officials may have committed in Afghanistan.
On June 23, 67 countries issued a joint statement to
“reconfirm our unwavering support for the (International Criminal) Court as an
independent and impartial judicial institution.” The 67 countries are member
states of the ICC drawn from Africa, Asia, Europe, Latin and North America and
the Pacific Ocean region.
In their joint statement, they said they would continue to
uphold and defend the ICC’s founding law, the Rome Statute, and “preserve its
integrity undeterred by any measures or threats against the Court, its
officials and those cooperating with it.”
US Secretary of State Michael Pompeo announced his government’s
decision on June 11 saying the authorisation to impose financial sanctions on
ICC staff members was in an executive order Trump signed that day.
Pompeo made the announcement at a regular daily briefing the
State Department holds for the media. According to a transcript of that
briefing posted on the State Department’s website, Pompeo was accompanied by
Defence Secretary Mark Esper, Attorney General William Barr and National
Security Adviser Robert O’Brien. This was unusual because the State Department
daily briefings are usually addressed by a spokesperson and, occasionally, the
Secretary of State.
According to the transcript of the June 11 briefing, Esper, Barr
and O’Brien all spoke and reiterated what Pompeo said about the ICC and the
intended US government actions against the ICC officials.
During the June 11 briefing, Pompeo denounced the ICC and said
the court cannot act against American citizens because the US is not a party to
the Rome Statute that created the ICC.
“For a time, it looked like the ICC might do the right
thing and kill the investigation… last spring (April 2019) the Pre-Trial
Chamber unanimously rejected the prosecutor’s request to open the investigation,”
“But unfortunately, then in the spring, in March (2020), the
Appeals Chamber overturned that sound judgment and gave a green light to the
current investigation, effectively eliminating constraints on the prosecutor’s
office ability to launch new investigations of Americans in the future,” said
“We cannot, we will not stand by as our people are threatened by
a kangaroo court. And indeed, I have a message to many close allies around the
world: Your people could be next, especially those from NATO countries who
fought terrorism in Afghanistan right alongside of us,” said Pompeo.
Weeks later ICC President Chile Eboe-Osuji said the US had not
effected any sanctions but, in a June 26 interview with
Time magazine, he said such threats may hinder the court in prosecuting suspected
perpetrators of war crimes and crimes against humanity.
Judge Eboe-Osuji told Time magazine he hoped the joint statement
by the 67 countries, including US allies like Australia and the United Kingdom,
would convince the Trump administration to stop its actions against ICC
“It’s one thing to call courts of law names. That’s something
judges and courts endure all the time in every country … But to begin to
threaten or to adopt an executive order that says … at any time, people can be
named on the list without notice, it’s something we think is way, way, way
beyond the pale,” said Judge Eboe-Osuji.
A few hours after the June 11 US government announcement was
made, the ICC issued a statement expressing
“profound regret at the announcement of further threats and coercive actions,
including financial measures, against the Court and its officials.”
“These attacks constitute an escalation and an unacceptable
attempt to interfere with the rule of law and the Court’s judicial proceedings.
They are announced with the declared aim of influencing the actions of ICC
officials in the context of the Court’s independent and objective
investigations and impartial judicial proceedings,” said the ICC.
The President of the Assembly of State Parties, O-Gon Kwon, in a June 11 statement
described the US government’s decision to impose financial sanctions on ICC
officials as “unprecedented”. The
Assembly of State Parties is the top decision-making body of ICC member states.
O-Gon said the decision undermined, “our
common endeavour to fight impunity and to ensure accountability for
A group of more than 180 American lawyers and legal scholars
specializing in international law asked Trump to rescind the June 11 executive order.
“The undersigned have a diversity of views on the ICC and its
Afghanistan investigation. However, we share the conviction that sanctioning
ICC lawyers for carrying out their responsibilities to investigate atrocities
is wrong in principle, contrary to American values, and prejudicial to US
national security,” said the lawyers in a June 29 letter they
The World Federalist Movement-Institute for Global Policy
(WFM-IGP) termed the attacks by the United States shameful.
“This is an outrageous act that targets individuals for doing
nothing more than pursuing justice for victims of genocide, war crimes, and
crimes against humanity,” said WFM-IGP’s Director of Programmes Anjali
Other human rights defenders who have condemned the US include the
International Federation for Human Rights (FIDH).
“To use financial sanctions as a weapon against those seeking to
establish the truth, justice and reparation for victims of atrocities in
Afghanistan in the framework of international law and its legal mechanisms is
yet another blow from the US administration, and a further rogue step away from
global order by this country’s leadership,” said Guissou Jahangiri, a Vice-President
Before the financial sanctions announced in June, the US had
revoked or denied visas to ICC officials it did not name. Pompeo announced the
measure on March 15, 2019 at the
State Department’s daily media briefing. He said the US would not be issuing
visas to selected ICC officials because of the Afghanistan investigation. When
pressed at that briefing to name the officials Pompeo declined to do so.
But on April 5, 2019 Bensouda said her US visa was revoked. She,
however, said she would still be able to travel to the United Nations
headquarters in New York whenever she was to present her briefings to the
Security Council on cases the council had referred to the ICC. In his June 26
interview with Time magazine Judge Oboe-Esuji said that in addition to
Bensouda’s visa being revoked, the US had imposed “travel restrictions” on three
other OTP staff members.
A week after Bensouda made public her visa ban, Pre-Trial
Chamber II announced on April 12, 2019 its decision not to
allow the OTP to open an investigation into alleged crimes in Afghanistan. The
chamber said in its decision the OTP’s request satisfied the requirements for
opening such an investigation but such an investigation had limited prospects
of succeeding. Pre-Trial Chamber II said authorising an investigation would not
be in the interests of justice.
Pre-Trial Chamber II’s April 12, 2019 decision is what the OTP
successfully appealed. The OTP now has the authority to investigate alleged
crimes in Afghanistan but this does not mean matters will move quickly. There
is no set deadline for an OTP investigation. And whenever the OTP concludes its
investigation, it will have to convince a pre-trial chamber that the evidence
it has gathered warrants a trial.
The US is a signatory to the Rome Treaty that created the ICC.
To date the US has not ratified the treaty. Ratification is the step that would
make the US a member of the ICC.
American troops have been in Afghanistan since the US invasion of
that country about a month after the September 11, 2001 al-Qaeda attacks on the
World Trade Centre in New York City and the Pentagon in Washington DC in which
close to 3,000 people were killed. At the height of the US presence in
Afghanistan there were close to 100,000 American troops there. In recent years,
the US has been withdrawing its troops from Afghanistan and there are about
9,000 left whose main role is working with the Afghan army.