International Criminal Court Asserts Jurisdiction Over US Actions in Afghanistan

Statement by Dr. Hans Köchler on the Executive Order signed by the President of the United States on 11 June 2020

Vienna, 26 June 2020
RE/20689c-is

The decision by President Donald Trump to block property and restrict entry into the United States of any foreign person directly engaged in efforts by the International Criminal Court (ICC) to investigate or prosecute United States personnel without the consent of the United States constitutes a serious interference with judicial independence.

As such, any attempt to coerce a court, whether domestic or international, is incompatible with the rule of law. The “Basic Principles on the Independence of the Judiciary” were repeatedly affirmed by the United Nations, in particular in General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

Invoking, inter alia, the International Emergency Economic Powers Act (1977), the President of the United States determined that any investigative or prosecutorial action by the ICC against U.S. personnel constitutes “an unusual and extraordinary threat to the national security and foreign policy of the United States.”

Subsequently, the President declared a national emergency, ordering the imposition of punitive measures on officials of the ICC and other persons having directly engaged, or assisted, in efforts of the Court to investigate, arrest or prosecute US personnel. These measures taken by the President of the United States threaten the very fabric of international law.

On 5 March 2020, the Appeals Chamber of the International Criminal Court unanimously decided to authorize the Prosecutor of the Court to commence an investigation into alleged international crimes in relation to the situation in Afghanistan. The Islamic Republic of Afghanistan has acceded to the Rome Statute of the International Criminal Court on 10 February 2003, which gives the court jurisdiction to investigate and prosecute war crimes and crimes against humanity committed on the territory of Afghanistan since 1 May 2003.

The United States is not a State Party to the Rome Statute of the International Criminal Court. Having taken an active part in the negotiations on the Rome Statute and having signed the Statute on 31 December 2000, the United States never ratified it. The Court only has jurisdiction over crimes committed on the territory of a State Party or by nationals of a State Party. Accordingly, the Court has no jurisdiction over crimes committed on the territory of the United States, except by nationals of a State Party. Reversely, the Court has jurisdiction over crimes committed on the territory of Afghanistan, including by nationals of Non-States Parties.

It is obvious that the United States, not being a State Party, is not bound by the Statute of the ICC. Pacta tertiis nec nocent nec pro sunt. According to the Vienna Convention on the Law of Treaties, a “treaty does not create either obligations or rights for a third state without its consent.” As a sovereign state, the United States is not in any way obliged to cooperate with the International Criminal Court (except in matters referred to the Court by the UN Security Council on the basis of a mandatory resolution). According to the President’s Executive Order, the actions on the part of the ICC “threaten to infringe upon the sovereignty of the United States.”

However, the argument of sovereignty does not hold in regard to the status of individuals, whether private or official, on the territory of a foreign state. While the U.S., as a state, is not bound by the Statute of the ICC, individual U.S. citizens are subject to the laws, including criminal laws, applicable in the territory of the states they visit.

This includes legal norms arising from treaty obligations of the state they visit. Accordingly, if a country has ratified, or acceded to, the Rome Statute of the International Criminal Court, the Court is competent to investigate and prosecute atrocity crimes committed on the territory of that state irrespective of the nationality of the suspects.

As regards assertion of U.S. sovereignty in a quasi-absolute sense, the Executive Order signed by President Trump incorporates the rationale of the earlier American Servicemembers’ Protection Act (dubbed “Hague Invasion Act”), adopted by the U.S. Congress in 2002. The law authorizes the U.S. 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.”

The U.S. policy vis-à-vis the International Criminal Court is based on an absolute, exclusionary, understanding of sovereignty that openly contradicts the United Nations Charter’s principle of “sovereign equality.”

The “absolutist” interpretation of sovereignty has also been obvious in other areas such as the U.S. practice of extraterritorial sanctions. Though politically consistent, this approach is legally inconsistent when it comes to decisions of the United States in matters of international criminal justice.

To mention only two of the most striking examples: While it has insisted on upholding the sovereignty of the United States under all circumstances, the U.S. was nevertheless instrumental in the establishment of ad hoc tribunals for the former Yugoslavia and Rwanda by the UN Security Council.

These courts were not the result of international treaties, but of “executive fiat” by the Security Council, a body that does not possess legislative authority. There was no ratification procedure for the statute of the courts by the legislative authorities of sovereign states. The court’s decisions were, nonetheless, considered as binding upon all member states.

An agenda of power politics, not law, was also apparent in the United States’ use of the International Criminal Court – the existence of which it rejects, in principle – for measures of criminal justice against the leaders of Sudan and Libya, both Non-States Parties of the ICC.

Neglecting the argument of sovereignty, the U.S. enabled the Security Council to “refer” the situations in these two countries to the International Criminal Court. Article 13(b) of the Rome Statute (“Exercise of jurisdiction”) is almost an invitation to the most powerful countries in the Security Council – those permanent members that are not State Parties of the ICC – to engage in a policy of double standards in matters of criminal justice. While not being bound by the Court’s Statute, they can nevertheless make “political” use of the Court.

The Executive Order of 11 June 2020 as well as the American Servicemembers’ Protection Act of 2002 also seems to neglect one basic legal fact. The International Criminal Court does not exercise universal jurisdiction. According to Article 1 of the Rome Statute, its jurisdiction is complementary to national criminal jurisdictions. Only in cases where a state is unable or unwilling to exercise jurisdiction can the ICC initiate an investigation.

In this regard, as well as in the case of territorial jurisdiction, the United States’ assertion that the ICC violates the sovereignty of the United States is not supported by the legal facts. Furthermore, in modern international law, sovereignty is defined on the basis of mutuality. Mutual recognition, not mutual exclusion, of national rights defines the sovereign status of all members of the international community. This implies that acts of nationals of any state are subject to the territorial jurisdiction (including jurisdiction under treaties) of the state where they act.

United States officials have repeatedly called for a reform of the Rome Statute of the ICC and for greater effectiveness and accountability of the Court. In a press statement, the White House deplored “corruption and misconduct at the highest levels of the International Criminal Court Office of the Prosecutor, calling into question the integrity of its investigation into American service members” (Statement from the Press Secretary, 11 June 2020).

These calls would be much more credible if the United States refrains from threatening a court – of which it is not a member – with the blocking of property and a travel ban on that court’s officials and their family members.

The controversy between the United States and leading UN member states over the International Criminal Court has made the predicament of criminal justice in the context of global power politics more than obvious. The Joint Statement of 67 member states of the ICC, issued in response to President Trump’s Executive Order, emphasizes that a permanent international criminal court “is an essential element of the multilateral architecture upholding the rule-of-law.”

This will only become a reality if all permanent members of the United Nations Security Council and other powerful states join the Court. As long as this is not the case, powerful Non-States Parties may always put the assertion of national interests above the rule of law.

In the words of David Scheffer, former United States Ambassador-at-Large for War Crimes Issues and member of the U.S. negotiating team in the United Nations Diplomatic Conference on the Establishment of an International Criminal Court, the Executive Order of 11 June 2020 will go down in history as an act that is tantamount to a “retreat from the rule of law.”

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• Hans Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads