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U.S. Options for the ICC’s Possible Afghanistan Investigation

By: David Johnson

The Rome Statute was adopted on July 17, 1998, and went into effect on July 1 2002, establishing the ICC.  The ICC has jurisdiction over genocide, crimes against humanity, and war crimes committed by or in a country that is party to the statute, or crimes referred by the UN Security Council.  One hundred thirty-eight countries are signatories to the statute, and 123 countries have ratified the statute. The United States has signed but not ratified the statute.  Through accession, Afghanistan became a party to the statute on February 10, 2003, with the statute entering into force there on May 1 of the same year.

On November 20, 2017, the Prosecutor of the ICC, Fatou Bensouda, requested authorization to initiate an investigation of war crimes and crimes against humanity in Afghanistan since May 1, 2003, the day the Rome Statute took effect there.  This request is the first part of a possible six-stage process of the ICC court process: preliminary examinations, investigations, pre-trial stage, trial stage, appeals stage, and enforcement of sentence.  This preliminary examination focuses on claims of pro- and anti-Government forces committing crimes against humanity and war crimes.  U.S. forces have been in Afghanistan as a pro-Government force, with other nations of the International Security Assistance Force (ISAF), since the fall of the Taliban in late 2001.

In response, the White House announced on September 10, 2018 that if the International Criminal Court (ICC) proceeded with the investigation the Trump Administration would consider: (1) negotiating bilateral agreements prohibiting nations from surrendering U.S. personnel to the ICC; (2) banning ICC judges and prosecutors from entering the United States, sanctioning their funds int the U.S. financial system, and prosecuting them; (3) and trying to constrain the ICC’s power by going through the United Nations Security Council.

Can the Trump Administration use the options it announced to prevent an ICC investigation into actions taken by U.S. military and intelligence personnel in Afghanistan?  Article II, Section 2 of the U.S. Constitution provides that the President cannot make a treaty without Congressional approval.  However, there are executive agreements that can avoid this requirement, such as status of force agreements (SOFAs), that would allow the Trump Administration to make bilateral agreements preventing extradition of U.S. personnel to the ICC.  Article 13 paragraph 5 of the U.S.-Afghan Bilateral Agreement specifically states “force members” are not to be transferred to the custody of any entity without the express consent of the United States.  A relevant question outside the scope of this post is whether this agreement precludes Afghanistan’s accession to the Rome Statute or the reverse.

United States Code Title 8, Section 1182(f)outlines when and how the President can impose entry restrictions into the United States. The U.S. Supreme Court recently held in Trump v. Hawaiithat the sole requirement set forth in Section 1182(f) is for the President to find that the entry of the persons would be detrimental to the interests of the United States.  The Trump Administration has stated that if the ICC proceeded with an investigation it would infringe upon U.S. sovereignty, which would likely pass the “detrimental to U.S. interests” standard; therefore, Trump would likely be able to bar ICC members from entering the United States.

Article 1, Section 8of the U.S. Constitution states that Congress will “regulate Commerce with foreign nations.”  However, Presidents have signed Executive Orders (E.O.) creating sanctions, e.g. President Obama’s signature of  E.O. 13694.  President Trump might be able to sanction ICC members, but Congress can restrict him from doing so by passing a law stating that he cannot sanction ICC members.  Congress passed the Countering America’s Adversaries Through Sanctions Act in August 2017, preventing President Trump from discarding prior sanctions on Russia.  This action could indicate that Congress will try to wrest more control of sanctioning powers away from the White House and preclude Trump from using them against the ICC.

The Trump Administration has also threatened to prosecute ICC members if they open a full investigation into U.S. military and intelligence personnel. The Congressional Research Service released a report in October 2016 detailing the extent to which the United States applies U.S. law extraterritorially.  Congress has broad power to create laws of extraterritorial scope, but prosecutions are relatively low. If the United States does apply its law extraterritorially in this circumstance, under what charges would the Trump Administration prosecute the ICC judges and prosecutors that would overcome the practical, legal, and diplomatic obstacles to ensure conviction?

The United States can bring the issue to the UN Security Council. The United States would likely find allies in Russia and China to try to take power away from the ICC.  Russia signed the Rome Statute but never ratified it. China neither signed nor ratified the statute, worrying about infringement upon its sovereignty.  A question that the United States should ask itself though, is if it wants to weaken the international and interdependent system it helped to create in the period after World War II.

If the ICC goes forward with investigations of U.S. military and intelligence personnel for alleged crimes against humanity and war crimes committed during the Afghanistan war, the Trump administration does have options. Trump can negotiate SOFAs with countries and ban ICC judges and prosecutors from entering the country without much legal challenge.  However, Trump may have more difficulty and face more restrictions by sanctioning or prosecuting ICC judges and prosecutors if Congress decides to enact laws restricting these policies or U.S. courts rule against Trump if there were to be legal claims challenging these two options.  Bringing the issue to the UN Security Council could possibly work, but it would degrade the legal power of the international system, rendering it one step closer to useless.


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