The US President issued an executive order authorising sanctions against International Criminal Court (ICC) employees involved in an investigation into whether US armed forces, intelligence agents, or allied countries, such as Israel, committed war crimes during the conflict in Afghanistan. The executive order would deny visas and block funds for ICC employees and immediate family members.

The ICC is a court of last resort, stepping in only if national authorities fail to conduct genuine domestic proceedings. In 2017, the court’s Chief Prosecutor, Fatou Bensouda, said that there is a “reasonable basis” to believe that the US forces and the intelligence agencies "committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period".

A statement from the White House press secretary mentioned that the US, as a non-member of the ICC, “has repeatedly rejected the ICC’s assertions of jurisdiction over United States personnel”.

US RATIONALISATION FOR ITS DECISION

US Secretary of State, Mike Pompeo, justified the sanctions by denouncing the tribunal as a "kangaroo court"that has been unsuccessful and inefficient in its mandate to prosecute war crimes. He added that “we cannot allow ICC officials and their families to come to the United States to shop and travel and otherwise enjoy American freedoms as these same officials seek to prosecute the defender of those very freedoms.”

Pompeo’s views were echoed by Attorney General William Barr who pointed at possible corruption within the ICC hierarchy that he said raised suspicions that Russia and other adversaries could be interfering in the investigatory process. Barr warned that these sanctions were merely the beginning of a “sustained campaign” by the US in holding the ICC accountable for exceeding it’s jurisdictional powers and violating their national sovereignty.

Although the US has not ratified the Rome Statute, which created the Court, to this date, the ICC retains jurisdiction over US nationals in certain circumstances. Pursuant to Article 13(c) of the Rome Statute, the court can exercise its jurisdiction where the ICC Prosecutor has initiated an investigation with respect to any crimes within the jurisdiction of the court. A crime committed in the territory of a member state, even if committed by a citizen of a non-member state, falls within the court’s jurisdiction. It follows that, as Afghanistan is an ICC member state, the court has jurisdiction to investigate and prosecute crimes committed both by their nationals or by anyone within Afghan territory. 

CRITICISMS OF THE ORDER 

On the other hand, there have been serious concerns about Trump’s order raised by the United Nations and the American Civil Liberties Union who have condemned the order as being "a dangerous display of his contempt for human rights and those working to uphold them".  EU foreign policy chief Josep Borrell said that the President’s decision is a “matter of serious concern”. The ICC, he added, "is a key factor in bringing justice and peace, it must be respected and supported by all nations and we’ll analyse the decision in order to assess its full implications." "At a time when the rules-based international order is facing increased pressure, the strengthening of the international criminal justice system is more important than ever."

The ICC responded with a statement expressing “profound regret at the announcement of further threats and coercive actions”. The statement continued, saying that the US decision had been made “with the declared aim of influencing the action of ICC officials” in the course of the court’s investigations. 

REPERCUSSIONS OF THE SANCTIONS

The court is already subject to criticisms of its alleged bias against African countries by several African leaders and the African Union. Critics argue that the court “reinforces Western perspectives and standpoints as universal maxims valid for all people and all nations, and re-enacts racialised metaphors of savages, victims and saviours in the name of truth and justice”. This is apparent from the fact that some of the most powerful Western states - such as the US, Russia, and China - are not parties to the ICC, “creating a two-tiered standard of accountability for the powerful and the powerless”.

Richard Dicker, International Justice Cirector at Human Rights Watch said that “the ICC, despite its shortcomings, remains one of the few available tools to bring justice if national courts fail to do so”. He added that US “threats against the ICC mask the real problem, the failure of US authorities to address past torture and other abuses by the CIA and US armed forces”. It is evident that this action by the US undermines the ICC’s role to, as provided for in the preamble of the Rome Statute, “put an end to impunity for the perpetrators of these crimes”. 

Mithurja is currently a BPTC Student at City University. She was born and raised in Germany into a Sri Lankan family. She grew up seeing the horrors of the Sri Lankan Civil War on the news and feeling the need to fight such injustices worldwide. She has an LLB from Kingston University and is interested in practising at the Bar of England and Wales. Her interests revolve around international criminal law human rights laws. Mithurja represented the UK at the international rounds at the ICC in the ICC Moot Court Competition 2019.

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