Chase Gunnell on “From Ally to Bitter Enemy: Secretary Pompeo’s Comments Add Another Layer to the Complex US-ICC Relationship”

Today’s guest post is from Maj. Chase Gunnell of the law faculty at the U.S. Air Force Academy.  Chase grapples with the implications of the recent decision by the International Criminal Court (ICC) to authorize its prosecutor to investigate alleged war crimes in the Afghanistan conflict.

This decision evoked a blistering response from U.S. Secretary of State Mike Pompeo who called the ICC “a nakedly political body” and “an embarrassment.”  He also vowed that the U.S. “will not tolerate its inappropriate and unjust attempts to investigate or prosecute Americans,” adding that “[w]hen our personnel are accused of a crime, they face justice in our country.”

In a post last December explaining “Why the case against the International Criminal Court (ICC) is the stronger one” I pointed to the differences between “justice in our country” versus the criminal justice architecture the ICC uses as a key reason the U.S. should not become a party to the ICC.

Maj. Gunnell adds to the dialogue by exploring the nature (and limitations) of ICC jurisdiction, and argues that “[i]f the United States wants to preclude the ICC from exercising jurisdiction, the United States must genuinely investigate and, if necessary, prosecute the alleged criminals.”

(Note: photos and illustrations are my “adds”)

From Ally to Bitter Enemy:
Secretary Pompeo’s Comments Add another Layer to the Complex US-ICC Relationship

by

Maj. Chase Gunnell, USAF

      In 2017, Fatou Bensouda, the Prosecutor of the International Criminal Court (ICC), requested authorization to open an investigation into alleged crimes committed on the territory of Afghanistan from 1 May 2003.

      On Thursday, March 5, 2020, the International Criminal Court (ICC) decided unanimously to authorize the Prosecutor to commence an investigation into alleged crimes under the jurisdiction of the Court in relation to the situation in the Islamic Republic of Afghanistan.

     Among the alleged crimes are “[w]ar crimes by members of the United States (“US”) armed forces on the territory of Afghanistan, and by members of the US Central Intelligence Agency (“CIA”) in secret detention facilities in Afghanistan and on the territory of other States Parties to it…”

      Responding to the news, Secretary of State Mike Pompeo said the United States would take “all necessary measures to protect [US] citizens from this renegade, unlawful so-called court.”

     This follows similar rhetoric from the Trump Administration, as then-National Security Advisor John Bolton said the ICC is “already dead to us” and “unacceptably threatens American sovereignty and U.S. national security interests.”  However, there may be aspects ICC jurisdiction that they are underselling.

History of the US and the ICC 

       The ICC was created by the Rome Statute in 1998, and came into force on 1 July 2002.  Currently, there are 123 nations that are parties to the ICC, but the United States is not one of them.

      The US and the ICC have had a tumultuous past, in which the US played a central role in the establishment of the Rome Statute and initially signed the treaty, but has never ratified the treaty.

     On May 6, 2002, the George W. Bush Administration announced that the US would not seek to ratify to the Rome Statute. Under President Obama, the relationship between the ICC and the US “significantly progressed”; however, the “policies of the Donald Trump administration highlight[ ] a much more complicated relationship.”

Does the ICC threaten American sovereignty? 

            As recent rhetoric has highlighted, a major concern in any international agreement is the notion of sovereignty, and the concerns about the Rome Statute are no different.  Under the traditional model outline in Articles 26, 28, and 29 of the Vienna Convention on the Law of Treaties (VCLT), a treaty is generally only binding on parties to the treaty.  If a provision in a treaty subsequently becomes customary international law, that provision then has the ability to bind a third party, as outlined in Article 38 of the VCLT.

            Under the traditional model of treaty law, since the US is not a party to the Rome Statute and no court has determined that the provisions have risen to the level of customary international law, the US should not be bound by the treaty.  However, Article 12 of the Rome Statute identifies preconditions to the ICC’s ability to exercise jurisdiction.  Article 12(1) outlines the traditional model of State Party jurisdiction.

      Additionally, the ICC has jurisdiction over nationals of State Parties to the Rome Statute (Article 12(2)(b)) as well as crimes that took place within the territory of a State Party, even if the actor is not a national of a State Party (Article 12(2)(a)).  Therefore, it is possible for a citizen of a State that is not party to the Rome Statute, like the US, to be subject to ICC jurisdiction if the action took place in the territory of a State Party.

      Under international law and the notion of sovereignty, a State has the jurisdiction to prescribe, which mean it has the right to establish laws within its territories.  By becoming a party to the Rome Statute, a State agrees to ICC jurisdiction for crimes that take place within its territory no matter the nationality of the perpetrator.

            On 10 February 2003, Afghanistan filed the necessary documents under Article 125 of the Rome Statute to accede to ICC jurisdiction to become a State Party.  Therefore, by sending troops to Afghanistan, the United States potentially opened up its citizens to ICC jurisdiction.

Is ICC jurisdiction automatic?    

         Article 17(1) of the Rome Statutes outlines the rule of complementary jurisdiction, which means that national criminal jurisdiction would have the ability to preclude ICC jurisdiction if the national criminal system “genuinely” investigated and, if appropriate, prosecuted the alleged acts.  If a State is “unwilling or unable genuinely to carry out the investigation or prosecution,” the ICC would have the ability to hear the case.

      Therefore, if the United States wants to prevent ICC jurisdiction over the alleged acts by the military and CIA officials, it must genuinely investigate the matter, and, if appropriate, prosecute the individuals for the alleged crimes.  If the United States genuinely investigates and prosecutes those responsible, the case would be “inadmissible” in the ICC under Article 17.

      Although there is no definition in the Rome Statute what it means “genuinely” to investigate and prosecute a case, Article 17(2) outlines what is meant by “unwilling and unable.”

      Under the Rome Statute, a State is unwilling or unable if it (a) investigates and prosecutes the individual for the purpose of “shielding the person concerned criminal responsibility for crime;” (b) there is an “unjustified delay in the proceedings which  in the circumstances is inconsistent with an intent to bring the person concerned to justice;” or (c) the proceedings “were not or are not being conducted independently or impartially; and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”

Does the US-Afghanistan Status of Forces Agreement Change the Analysis? 

      In 2003, the United States and the Islamic Transitional Government of Afghanistan (ITGA) entered into a bilateral agreement, which explicitly stated the Government of Afghanistan “confirms that without the explicit consent of the Government of the United States, [United States personnel] may not be surrendered to, or otherwise transferred to the custody of an international tribunal or any other entity or State.”

      The timing and wording of the bilateral agreement are not a coincidence.  Remember, Afghanistan acceded to the Rome Statute and accepted ICC jurisdiction in 2003.  The wording of the agreement also closely follows Article 98(2) of the Rome Statute, which states:

The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

      There are two key points about Article 98(2) that are relevant to the discussion.  First, Article 98 agreements explicitly state the Court cannot “proceed with a request for surrender.”  This means that the ICC could have jurisdiction over the individual, but the Court cannot force a State to surrender an individual in violation an international agreement to which it is a party.

     Pursuant to the bilateral agreement between the United States and Afghanistan, the Court cannot proceed with a request for surrender from Afghanistan.

      In addition to Afghanistan, the United States has entered into “some form of SOFA agreement with more than 100 nations” in an effort to “protect, to the maximum extent possible, the rights of United States personnel…”  However, there are a few counties that are State Parties to the Rome Statute with which the United States has not entered into a bilateral agreement.  These States could comply with a request for surrender from the ICC.

      Secondly, Article 98 only says the Court may not proceed with a request for surrender and does not say the Court is precluded from opening an investigation.  This is particularly relevant because the March 5 decision by the ICC only authorizes the Prosecutor to open an investigation.  Only time will tell if the Court will issue a warrant in this case.

Way ahead

      One additional looming question surrounding ICC jurisdiction and the US is how President Trump’s recent pardons of three members of the military could potentially open the individuals up to ICC jurisdiction.  Given the tangential nature of that topic, I will address that in a subsequent post.

      For the issue at hand, the ICC has opened an investigation into the actions of military members and CIA officials.  If the United States wanted to preclude the ICC from exercising jurisdiction, the United States must genuinely investigate and, if necessary, prosecute the alleged criminals.  The ball, so to speak, is in our court.

The views expressed herein are the author’s alone and do not necessarily reflect the official policy or position of the United States Air Force Academy, the United States Air Force, the Department of Defense, or the United States Government.  Guest posts also do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Major Chase Gunnell is an assistant professor of international law at the United States Air Force Academy (USAFA).  Prior to joining the faculty at USAFA, Major Gunnell was a student at The George Washington University Law School where he graduated With Highest Honors and received an LL.M. in International and Comparative Law.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!