On June 11 2020, the Trump administration issued unprecedented sanctions against the International Criminal Court (“ICC”), as well as the international lawyers and human rights investigators involved with the court. Before analysing the attack on the ICC itself, it’s necessay to wind back to 2001, and Operation Enduring Freedom.
In the tragic events of 9/11 in 2001, nearly 3000 people lost their lives. Fourteen days later the FBI linked the perpetrators to al-Qaeda — a transnational extremist Salafist militant organisation founded by Osama Bin Laden in the late 1980’s. Through videos, audio clips, interviews and statements, Bin Laden asserted responsibility for orchestrating the September 11 attacks. United States Operation Enduring Freedom, an American-led International endeavour, was constituted a month later to oust the Taliban regime in Afghanistan and destroy the al-Qaeda’s terrorist network based there.
On October 7th 2001, the US launched air-strikes against Afghanistan. As other countries joined forces, in 60 days the Taliban was removed from operational power, but they did not fizzle out. Their deep-rooted influence grew back and dug in. The war continued, as the US and coalition forces struggled to stop Taliban insurgency and keep Afghanistan’s government from collapsing. This international coalition combat mission ended in 2014, but the US continued its operation. However, the Taliban grew back to power and was active across 70% of Afghanistan by 2018. On February 29th, 2020, after over a year of negotiations, the US and Taliban signed a peace treaty which lays a timeline for US forces to withdraw from Afghanistan.
The Office of the Prosecutor
During the aforementioned period, there were several questions concerning alleged war crimes and crimes against humanity by US forces. A United Nations expedition into Afghanistan brought to light over 17,000 civilian deaths by the Taliban since 2009, out of this 7,000 was targeted bloodshed. Yet, appallingly, a U.N report on Afghanistan, from April 2019 uncovered that US and Afghan forces had killed even more, in the first three months of 2019, than the Taliban.
The ICC’s Office of the Prosecutor (“OTP”) opened a preliminary investigation into these allegations in 2006. The OTP investigated the allegations concerning crimes against humanity and war crimes committed by pro and anti-government forces, which included the Taliban and related groups. It was unveiled that the US interrogation techniques utilized, such as torture, cruelty, outraging personal dignity and rape amounted to war crimes which comes under the jurisdiction of the ICC. However, it was over more than a decade after garnering evidence, that authorization to open a full investigation was requested. This was on a ‘reasonable basis to believe’ commission of war crimes by the US military and intelligence.
The Pre-Trial Chamber was of the opinion that an investigation would be most likely unsuccessful and to proceed would not promote the interests of justice. On this basis, in April 2019, the plea was unanimously rejected. This decision was met with much denunciation for neglecting the victims of the alleged crimes by buckling to intimidation by the Trump administration’s threats. Fatou Bensouda, International Criminal Court prosecutor, appealed the decision of the Pre-Trial Chamber. In March 2020, the Appeals Chamber unanimously reversed the decision. The panel gave this ‘truth seeking inquiry’ its green light, just days after the US signed the deal with the Taliban.
The Contemporary Stance
In response to the decision and these events, the Trump administration took an economic and legal ‘offensive’ stance against the ICC. The United States President issued the executive order under the National Emergencies Act, The International Emergency Economic Powers Act, and the Immigration and Nationality Act. The US threatened to sanction officials involved, and also place visa restrictions on their families. It was additionally declared on 4th June that the US would launch a counter-investigation into the ICC for ostensible corruption.
US also contended that investigation into the alleged offences had been conducted by the US Department of Justice in 2009, a probe into 101 cases of alleged abuse of detainees by the CIA of which two died in CIA custody. Nonetheless, no charges were brought by this investigation. Human Rights Watch earlier stated that they found no evidence toward investigators actually interviewing the victims of torture, and that this investigation was seemingly only a ‘facade’. In a report by the US Senate Intelligence committee in 2014, it was unearthed that the CIA covered up its crimes with false claims to the Justice Department. The Report goes on to show that the interrogation methods were far more extreme that previously reported. In 2015, the US reported to the UN Committee Against Torture that investigations had begun into 70 detainee abuses that led to trial by courts-martial, but no further information was provided.
Contentions Regarding the ICC’s jurisdiction
While President Donald trump claims that the ICC does not have jurisdiction over the US military forces. However, this is refutable. In actuality, that isn’t the case. For while the US is not party to the Rome Statute, in order to invoke ICC’s jurisdiction, either (i) the person’s nationality must be of a country that acceded the Rome Statute, or (ii) the crime must be committed in a State that is party to the Statute. In this present situation, the alleged war crimes were committed on Afghanistan soil, a country party to the Rome Statute, who is a member of the ICC. Furthermore, according to the principles of Universal Jurisdiction, a person regardless of the nationality, who commits a crime abroad is subject to the jurisdiction of the court of the State where the crime was committed.
Nevertheless, regardless of the jurisdiction issue, the biggest obstacle the ICC faces is its limited powers and resources to carry out an investigation. It predominantly relies on the cooperation of the member states. In the present scenario, the ICC will not receive support from Afghan government, since firstly it has stated that it is conducting its own investigation and secondly owing to the fact that charges are also introduced against them. The US has already publicly retaliated that the American Service-Member’s Protect Act prohibits US officials from cooperating with the ICC.
From the inception of the International Criminal Court, till present day, the court has had twenty-eight cases before it, issued thirty-five arrest warrants, had seventeen people detained in the ICC detention centre, eight convictions and four acquittals. Yet, the convictions for the offences of war crimes and crimes against humanity have been minimal. The ICC’s limitations coupled with recalcitrant superpowers hamper the working of the ICC and even pose a threat to its very existence. The US., Russia and China on several occasions have used their power as members of the Permanent Five of the Security Council to veto cases from being referred to the ICC by the United Nations. For instance, Russia and China vetoed the United Nation draft resolution to refer the Syrian crisis to the ICC. This reflects the balance of power steering the ICC. The cooperation of global powers is directly synonymous to the efficacy of the court. Absence of this could hinder the ICC from fulfilling its mission of putting an end to impunity for perpetrators of the most serious crimes of concern to the international community.
Naina Elizabeth Mathew is a final year Bachelor of Laws student at the National University of Advanced Legal Studies, Kochi. (India).
Image: Aïda Amer/Axios. Photos: AFP Contributor/Contributor, Mark Wilson/Getty Staff.