After an unprecedented executive order issued by President Donald Trump, the United States of America has imposed sanctions, including travel ban and assets freeze, against the officials of ICC, including its Prosecutor Fatou Bensouda.
This order, issued on June 11th, 2020, is a response to the ICC’s acceptance of a request for an investigation into war crimes committed in Afghanistan. The acceptance came after the Appeals Chamber Judges unanimously agreed to the prosecutor of ICC’s request to open an investigation into the grave crimes committed by the Taliban, and the Afghan military, and military personnel and intelligence experts of the U.S. armed forces. Those crimes varied between unlawful executions, enforced disappearances, systematic torture, and several attacks against civilians.
The ICC’s decision came after the prosecutor appealed the decision issued by the Pre-Trial Chamber. The decision stipulates the rejection of opening an investigation into the status of Afghanistan, where the Pre-Trial Chamber justified the decision on the ground that a. investigation will not serve justice, and there is a difficulty to open investigations in Afghanistan.
After the measures the United States of America took against ICC, it is crystal clear that America is involved in crimes committed in Afghanistan. Thus, those measures were taken to dissuade ICC from progressing in the investigations. It also indicates that American knows exactly the violence and crimes U.S Military Forces committed in Afghanistan since 2003.
When approaching the content of the US decision, it is clear it rejects the ICC’s decision because the United States of America is a non-party to the Rome Statute, and therefore the ICC lacks mandate over the US or its employees.
However, the US’s justification is not legally acceptable because the Rome Statute stipulates that the ICC has the authority to persecute and investigate crimes committed in a territory of a member state of the statue irrespective of the nationality of the perpetrator—either it is a member or not. Afghanistan is a member of the Rome Statute, which means that the ICC’s decision to open an investigation into the American crimes in Afghanistan is 100% legal.
It is worth mentioning that ICC never intervenes until the case gets worse to the extent national authorities become unable to open the investigations needed against the perpetrators. That is exactly what happened in Afghanistan, where the authorities repeatedly failed to open needed investigations, pushing the ICC to intervene and open investigations into crimes there.
Another important point is that the sanctions against the ICC will not be imposed because of Afghanistan but also because of the ICC’s efforts in the Palestinian Territories. This is confirmed by Mike Pompeo’s threats against the ICC when the latter announced in late April that it has the authority over the Palestinian territories, including the Gaza Strip, the West Bank, and East Jerusalem. The US executive order against the ICC, issued by Donald Trump, stipulates: “Despite the United States of America’s frequent calls to ICC, the latter did not take any step to make things right but continued to politically open investigation against us and our allies, including Israel.” This explains that the United States of America is intending to protect Israel from the ICC’s investigation. Therefore, US’s reaction might include imposing a new list of sanctions against the ICC.
Finally, the US’s abuse against the ICC aims to undermine the idea of international peace, which America ironically calls for. What America has done against the ICC—the only court concerned with serious international crimes—denied international justice and wasted the rights of thousands of victims of violence.