High-ranking U.S. officials could face charges under a pending International Criminal Court (ICC) ruling that could breathe new life into a decade-long investigation into war crimes allegedly committed during the conflict in Afghanistan.
If a formal investigation were allowed that resulted in efforts to bring Americans to trial, it could undermine the current administration’s military strategy in Afghanistan and elsewhere, experts told The Crime Report.
“No other country has the military footprint the U.S. has; we are everywhere,” said Gabor Rona, a visiting professor of law at the Cardozo School of Law.
“The ability of the US to project that military footprint…would be challenged and compromised, knowing its personnel would be subject to an international tribunal.”
In June, the ICC’s Office of The Prosecutor(OTP) requested leave to appeal a controversial decision by the Pre-Trial Chamber (PTC) in April not to authorize a formal investigation into alleged U.S. “war crimes” in Afghanistan.
The PTC usually consists of a three-judge panel that decides if a potential case meets the requirements to authorize an official investigation by the OTP.
Sources told TCR that a decision could come as early as mid-august.
The ICC began investigating the situation in Afghanistan in 2007, and the request for authorization by Prosecutor Fatou Bensouda was submitted to the Pre-Trial Chamber in November 2017.
One of the reasons for the lengthy preliminary investigation noted in the PTC’s April decision was the difficulty in getting even minimal cooperation from “relevant authorities.”
The PTC’s April decision drew stark criticism from victims and human rights groups, who accused the body of being cowed by U.S. threats and intimidation tactics, and thus giving a green light to other bad actors and organizations to commit heinous acts in the future.
U.S. officials aren’t the only targets of the investigation. The PTC received 699 separate victim representations that also included alleged incidents by the Taliban, and Afghan forces.
With another critical decision looming, experts say several key issues are at stake for both the U.S. officials and the ICC at this juncture.
The U.S. has largely been hostile to the ICC, especially under the George W. Bush and Donald Trump administrations.
John Bolton, who served as Under Secretary of State in the Bush administration described the “unsigning” of the U.S. from the Rome Statute in 2002 as his “happiest day in government.”
After the PTC’s April decision, Bolton, now Trump’s national security advisor, said, “Today is the second happiest day of my life.”
In a December 2018 speech at NATO headquarters in Brussels, Secretary of State Mike Pompeo said the U.S. was taking “real action to stop rogue international courts, like the International Criminal Court, from trampling on our sovereignty, your sovereignty, and all our freedoms.”
In addition to threatening prosecution of ICC personnel, the U.S. made good on one of its threats by revoking the visa of Bensouda, the ICC’s lead prosecutor, shortly before the PTC delivered its decision.
In an April 19 statement reacting to the PTC’s decision, Secretary Pompeo called it a “victory for the rule of law” and noted that it followed the State Department’s March 15 announcement of visa restrictions on ICC personnel involved in any investigation of U.S. personnel.
“This decision is a victory for the rule of law and the integrity of the ICC as an institution, given the United States is not subject to the ICC’s jurisdiction, and I am glad the Court reconsidered its actions,” Pompeo said in the statement.
He continued: “The Trump Administration seeks to reform international institutions so they hew to their core missions, respect national sovereignty, and retain their effectiveness and legitimacy. The United States will always protect Allied and American military and civilian personnel from living in fear from unjust prosecution for actions taken to defend our great nation.”
Katherine Gallagher, a senior staff attorney at the New York City-based Center for Constitutional Rights, submitted victims’ representations to the ICC in support of the prosecutor’s request to allow for an appeal.
Gallagher told TCR she believes that if an investigation were to be ultimately authorized by the ICC, U.S. cooperation (or lack thereof) wouldn’t come into play until a much later stage.
No Evidence Preserved
Gallagher also disagrees with the Pre-Trial Chamber’s initial argument that a trial would be difficult to conduct at this point in time. The PTC noted the OTP made no attempts to preserve evidence during the entire preliminary investigation.
“From an evidentiary standpoint,” Gallagher told TCR, referring in part to George W. Bush’s own admission to authorizing torture, “It is not difficult to move forward with an investigation and ultimately arrive at the issuance of indictments and arrest warrants…Compliance with arrest warrants is the issue.”
Gallagher represents two men, Sharqawi Al-Hajj, and Guled Hassan Duran, who were captured and subjected to torture at various CIA detention sites and later moved to Guantanamo Bay, where they have been held without charge for over a decade.
Asked about potential U.S. culpability, Gallagher said, “Because there was coordination by the leadership of the Bush administration, of both the Department of Defense component and the counterterrorism component run by the CIA, you have to look at that whole group.”
Referring to past universal jurisdiction cases and the broad international support of the ICC, Gallagher says arrest warrants could at the very least deter individuals like George Bush, or Donald Rumsfeld from traveling to countries that would be obliged to cooperate with the ICC.
The PTC’s April decision ruled that a formal investigation into Afghanistan would ultimately not be in the “interests of justice,” an ambiguous term in the Rome Statute.
While much of the criticism and amicus curiae submissions have focused on the term “interests of justice,” Rona believes this is a dead end logistically for the prosecutor.
Rona believes that, instead, the PTC’s decision that the CIA “black sites” in other countries like Poland, Romania, and Lithuania, who are all parties to the Rome Statute, are outside the ICC’s jurisdiction, would have to be the basis on which an appeal was granted.
This would entail an investigation more exclusively focused on alleged crimes at CIA-run detention centers, and not those committed by the U.S. Armed Forces.
According to Rona, claims by the Trump administration that ICC charges are an infringement on U.S. sovereignty are either “bogus, disingenuous or hypocritical.”
“It was in fact the U.S. that pioneered this very important and essential notion of international justice.”
Adding to the potential for further clashes, Gallagher has filed a complaint to the United Nations Special Rapporteur of the Human Rights Council on the Independence of Judges and Lawyers, calling for an investigation into ICC interference by the Trump administration.
Impact on US Elections?
Looking ahead to the 2020 elections, Gallagher thinks any major focus on the situation in Afghanistan and the ICC is unlikely, but could become a part of some Democratic candidate’s broader strategy to improve cooperation with international institutions and organizations.
Gallagher noted that during the 2016 election, some Republican candidates were “bending over backwards to say they would bring back torture.”
While deeming complete support of the ICC unlikely, Gallagher would like to see candidates in the 2020 campaign step forward and say they support the rule of law, which includes ending impunity for the most serious international crimes including war crimes and crimes against humanity.
If the request is granted the appeal can then be filed. The Appeals Chamber has stated it will rule on the matter should the PTC fail to make its decision by September 1.
“It’s important to bear in mind the impact of this decision more globally,” Gallagher said. “The ramifications are huge.”
Dane Stallone is a contributing writer for The Crime Report.