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 officials.
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,” said Pompeo.
“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 Pompeo.
“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 officials.
“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 mass atrocities.”
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 signed.
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 Manivannan.
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 of FIDH.
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.