On June 11, 2020, president of the United States Donald Trump issued Executive order 13928 which was for blocking property of certain persons associated with the International Criminal Court means declaring a national emergency and authorizing asset freezes and ban on the entry of family against ICC officials. The executive order was issued because the president of the United States believed that there is an unusual threat to the national security and foreign policy of the United States because of ICC’s illegitimate assertions of jurisdiction over personnel of the United States & certain of its allies. It all started after the attack of September 11, 2001 against the United States.
The United States deploys its army troops in Afghanistan for revenge and to uproot the terrorist troops. The whole issue is centered at the investigation by the ICC into war crimes and crimes against humanity that are alleged to have occurred during the war in Afghanistan, or in the case of the United States Armed Forces in Afghanistan since May 1, 2003. All these get normalized after the revocation of the executive Order by the newly elected president of the US Joe Biden on April 02, 2021. Advocates welcomed the decision but requested to proceed with the investigation in Afghanistan of war crimes and the crimes against humanity including US personnel and CIA.
What is International Criminal Court?
International Criminal Court (ICC) is the world’s first permanent international court governed by an international treaty called as Rome statute. The object of this court is to investigate and tries individuals charged with the gravest crimes of concern to the international community like genocide, war crimes, crimes against humanity and crime aggression and also aims to hold the accountability for their crimes and to help in preventing these crimes from happening again. For lasting peace, Justice is a key condition. International criminal court tries to ensure long-term peace, stability and equitable development in post-conflict societies.
International Criminal Court has four principal organs:
1. The presidency- the most senior judge chosen by his or her peers.
2. Judicial divisions- which hear cases before the court.
3. The office of the prosecutor- headed by the prosecutor who investigates crimes and initiates criminal proceedings before the judicial division.
4. The Registry- headed by the registrar and is charged with managing all the administrative functions of the ICC, including headquarters, detention unit, and public defense office.
Key features of International Criminal Court
1. Trails are fair
2. The prosecution is independent
3. Defendant’s rights are upheld
4. Victim’s voices are head
5. Participating victims and witnesses are protected
6. Outreach creates two-way dialogue
Issue, Investigations & Reactions
The issue was that the US is not a member of the ICC and does not want the investigation by the ICC for its personnel against the war crimes and the crimes against humanity that occurred during the war in Afghanistan. But Afghanistan is a member of the ICC and the ICC can investigate its matters.
From November 20, 2017 to January 31, 2018; according to the claims of crimes ICC collected representations by victims in relation to their crimes claimed and all information about the allegations of war crimes & crimes against humanity by the Taliban, affiliated armed groups, United States Armed Forces, CIA and other international military forces in Afghanistan since May 1, 2003.
In 2019, on the request made by the chief prosecutor of ICC Fatou Bensouda to open an investigation but it got rejected on the ground that there is a low chance of successful prosecution and the investigation would not serve the interest of justice as Afghanistan and the US were uncooperative. But after an appeal against the decision on March 5, 2020 the investigation was authorized to proceed. Judge Piotr Hofmanski stated that Afghanistan is a member of the Rome Statute and that’s why the court has jurisdiction over it and the reason is clear from the preliminary examination which showed the commission of the war crimes and the crimes against humanity in Afghanistan.
In reaction to the investigation by the ICC US canceled Bensouda’s Visa in the month of April 2019, the reason given by US is that the US does not wish to be investigated by ICC in the matter of crime wars by US Military personnel.
On June 11, 2020 Executive order 13928 was issued by US President Donald Trump and the order was announced by the US secretary of state Mike Pompeo. The effect of this order established economic sanctions, restrictions on travel visas against ICC lawyers, investigations and journalists who provided evidence of war crimes by US citizens and troops. ICC is called a kangaroo court by US secretary of state Mike Pompeo.
On September 02, 2020 US imposed sanctions on the Head of Jurisdiction, Complementary and cooperation Division of the ICC Bensuoda and Phasiko Mochochoko. They both were added to the Specially Designated Nations and Blocked Persons List (SDN List) through authority created by the Executive Order. Richard Dicker of Human Rights Watch criticized this imposition of sanctions.
Why there are conflicts on the sanctions imposed by the US on International Criminal Court?
The sanctions are one of the examples that the US put efforts to avoid accountability by the method of threats. On May 15, 2020 US secretary of state Mike Pompeo affirms to exact consequences if ICC continues its investigation. It is clear from the statement of the US Secretary of State that if ICC continues its investigation then the US torture that investigation.
The executive order which imposes sanctions is a way to give wide discretion to add anyone to the SDN list to the US government. The executive order specifies that only foreign persons are subjected to the SDN list but it is unclear in the context of dual US citizens means they are subjected to the list or not. Therefore if anyone who is directly a part of the investigation, detain, arrest or prosecute any US personnel without the consent of the US government could be exposed.
Any US citizens or entities whether resides in the US or any other place in the world would not be able to transact with or provide services to either Bensouda or Mochochoko without facing the sanctions imposed by the US. It was also a way by the US to curtail efforts of investigations. Human rights defenders including US citizens could face civil or criminal sanctions. Prohibited interaction with a designated person under the executive order can lead a person to a charge of a fine of $1,000,000 & imprisonment of up to 20 years. While U.S. persons can be subject to these penalties under the violation of the executive order.
US sanctions have delayed the investigation by the ICC. By this act of US there is a violation of the rights of speech and advocacy as the executive order prohibits organizations and individuals to cease cooperation and engagement with the prosecution or in the procedure of interaction with the ICC.
Newly elected president of the US Joe Biden revoked executive order 13928 on April 02, 2021. Advocates welcome the decision but requested to proceed with the investigation of war crimes and the crimes against humanity in Afghanistan including US personnel by the International Criminal Court.
US sanctions on International Criminal Court were not lawful because International Criminal Court has jurisdiction over Afghanistan as Afghanistan is a member of the Rome Statute. Being a member state Afghanistan can claim for justice and go for an investigation. US denied the investigation on the grounds that the US is not a member state under the Rome Statute but the fact is that if a crime happens in the member state and is done by a non-member state then ICC can investigate War crimes and the crimes against humanity in this case. But in reaction to the investigation, the US government issued an executive order which is in relation to the ICC officials which imposed sanctions on them. The US by different methods tries to stop the investigation by ICC against US personnel victims of War crimes and the crimes against humanity. The threat, torture by the US government to ICC investigation is an effort to avoid investigation.
US sanctions are not legal sanctions over International Criminal Court. Because ICC has jurisdiction over Afghanistan as Afghanistan is a member state under Rome statute. International criminal court can not investigate non-members’ matters or a crime that happens in non-member states or matters referred by United States Military Forces. But ICC can investigate the matters of member states and war crimes in the member states. As US personnel is done the act on the land of Afghanistan so ICC has jurisdiction over and can investigate the matters. By this act of US, there is a disturbance came in the international law as international is all about the ethics believed and followed by the states. Although Joe Biden newly elected President of the US revoke the executive order and try to maintain the virtue of international law. Advocates welcomed the decision but requested to proceed with the investigation in Afghanistan of war crimes and the crimes against humanity including US personnel and CIA.
This article has been written by Varun Kumar, 4th year BA LLB student at Shri Ramswaroop Memorial University.