Authors: Ms. Katerina Karaterzi, Mr. Alexandros Kyriakidis

Introduction

In 2007, the Prosecutor of the International Criminal Court (ICC), Hon. Ms. Fatou Bensouda (at the time still serving as Deputy Prosecutor, she was elected as Prosecutor in 2011), initiated a preliminary examination in order to gather evidence and supporting material (pursuant to article 15 of the Rome Statute, henceforth “Statute”), on alleged war crimes and crimes against humanity during the armed conflict in Afghanistan from 1 May 2003 onwards. In November 2017, she submitted a request for authorization to open an investigation, pursuant to article 15(3) of the Statute, to the Pre-trial Chamber^[1] of the ICC . Apart from members of the Taliban group and affiliated armed groups and Afghan National Security Forces, the Prosecutor also included in her request (par. 68-71) members of the United States of America (US) armed forces and relevant agencies (par. 191 et seq). The Prosecutor also highligthed that the abettor of a criminal act, which is conducted in the territory of a state-party, may also be held responsible even without being physically present in the place where the relevant acts occur (par.47), extending responsibility to US military personnel or governmental officials who were not present in Afghanistan.

Procedure before the ICC

On 12 April 2019, the Pre-Trial Chamber rejected the Prosecutor’s request, not because of lack of jurisdiction by the ICC over US personnel, as may be expected considering that the US is not a state-party to the Statute.^[2] On the contrary, the Chamber confirmed the jurisdiction of the ICC, based on the principle of territoriality, for criminal acts allegedly committed by US personnel in Afghanistan, which in fact ratified the Statute in early 2003 (par. 50). The request was additionally found to be admissible, fulfilling the requirements of article 17 of the Statute on the principles of complementarity and gravity (par. 72-86). First, no national investigations or prosecutions had been found to have been conducted or to be ongoing against those who appear most responsible (par. 74), and, second, the nature, duration and consequences of the alleged crimes satisfied the gravity threshold (par. 81-86). However, the Chamber decided that the opening of an investigation under the current circumstances would not serve the interests of justice, because of, inter alia, deficiency of evidence, absence of meaningful cooperation by key authorities, and limited financial capacity of the ICC (par. 93-95).

The prosecutor appealed against the decision before the Appeals Chamber of the ICC. This was the first time since the establishment of the ICC that the Appeals Chamber adjudicated on a matter of authorization (par. 25). In March 2020, the Appeals Chamber found that the Pre-trial Chamber did not correctly interpret the interests of justice and that the reasoning for their conclusion was cursory and speculative (par.49). It reversed the decision, giving the Prosecutor authorization to investigate “alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002” (par. 79).  Right after the decision, the government of Afghanistan sent a letter to the Prosecutor requesting the deferral of the investigation, pursuant to article 18(2), claiming that relevant national proceedings have been or are still ongoing.

US reaction

While the procedure was still before the Pre-trial Chamber, John Bolton, the US national security advisor, stated in September 2018 that the “Trump administration would fight back the action of an illegitimate court and protect its citizens by any means”. In March 2019, US Secretary of State Mike Pompeo warned the Prosecutor that the government would impose economic sanctions and VISA restrictions in case that an investigation would take place. On 5 April 2019 the Prosecutor confirmed that her VISA had been officially revoked.

After the Appeals Chamber’s decision to authorize the Prosecutor, on 11 June 2020, the US President issued Executive Order no. 13928, which deemed the investigation to threaten US sovereignty, providing a list of sanctions against any natural and legal persons (to be specified by the Secretary of State) who were invovled with the ICC investigations (either directly, through investigation, arrest, prosecution, or indirectly, e.g. materially, financially, technologically) related to any case concerning US military personnel. On 2 September 2020, Mike Pompeo, announced that both the Prosecutor Fatou Bensouda and ICC’s Head of the Jurisdiction, Complementarity and Cooperation Division, Mr. Phakiso Mochochoko, were added to the Specially Designated Nationals and Blocked Persons List of the US Treasury and were, hence, subjected to the above sanctions, reiterating that the US has never accepted the ICC’s jurisdiction.

The issue of jurisdiction

Of particular interest is the issue of ICC’s jurisdiction over nationals of states that are not parties to the Statute, or which have not accepted the jurisdiction of the Court over a specific case or act ad hoc. The Prosecutor argued in her request that since Afghanistan is a state party to the Statute since 2003, the Court may exercise jurisdiction over alleged crimes committed on Afghan territory, irrespective of the perpetrators’ nationality, pursuant to article 12(2)(a) [3] of the Statute (principle of territoriality; par. 44).

The expansion of ICC’s jurisdiction over nationals of non-party states on the basis of territoriality is not new. In the case of South Ossetia in 2016, for example, the ICC claimed jurisdiction over acts committed by Russian military forces involved in the armed conflict during 2008 on Ossetian territory (par. 23 et seq.), despite the fact that Russia has not ratified the Statute. However, South Ossetia is a region of Georgia, and Georgia is a state-party to the Statute. Similarly, in the case of Myanmar, the ICC authorized the Prosecutor in 2019 to investigate alleged crimes against the Rohingya people committed by police forces of Myanmar, even though Myanmar is not a state-party (par. 40, 45 et seq.). Since the persecution started in Myanmar and ended in Bangladesh (state-party), the Court invoked the criterion of territoriality, especially considering the transboundary nature of crime and the nexus among the incidents (par. 56, 59).

The Prosecutor also drew a comparison between the relevant article 12(2)(a) and article 15bis(5) of the Statute on the crime of aggression. While the latter explicitly excludes  nationals of states that have not ratified the Statute from the ICC’s jurisdiction, the former lacks any similar clarification. She, therefore, argued that the wording of article 12(2)(a) was intentional, so that nationals of non-party states would be included (par. 44). The Prosecutor additionally mentioned a number of international treaties establishing jurisdiction over non-party states (e.g. Geneva Convention; par. 45), and underlined that the bilateral agreement between US and Afghanistan, regarding criminal prosecution of non-Afghans in Afghanistan pursuant to article 98 of the Statute, does not affect the Court’s jurisdiction, insomuch as it refers only surrendering persons to the ICC, and not to the jurisdiction of the ICC in general.

The Prosecutor and the overall argumentation of the ICC is based primarily on two theoretical arguments: the delegated universal jurisdiction and the delegated territorial jurisdiction. According to the first one, it is proposed that certain crimes are of universal jurisdiction, based on international (often customary) law, for all states. Therefore, as courts of any state may prosecute serious (mostly international) crimes regardless of the perpetrator’s nationality, they can accordingly delegate part of this jurisdiction to the ICC. According to the second argument, each state may regulate and exercise jurisdiction both over civil and criminal matters within its sovereign borders. With regard to criminal matters, for example, the citizens of US, Australia, United Kingdom, and Greece (art. 5-11, Criminal Code), during their stay in a foreign country, are subjected to the laws of that state, where they can be prosecuted, arrested, put on trial and convicted (see general rule), unless their extradition is requested (a subsequent and very specific procedure). If a state can (de facto) delegate that territorial jurisdiction to a court outside its own national judicial system, including an international court, then arguably the ICC may legitimately exercise that delegated jurisdiction over the territory of that state. In both theories described above, doubts have been expressed not about the principles as such, but whether these state-based jurisdictions can be extended to delegation to an international judicial body, let alone one that seeks jurisdiction over nationals of states that do not recognize it.

Concerning the, comparatively stronger, argument of territoriality, there has been no recent instance of an international criminal court basing its jurisdiction on this. For example, in the cases of Rwanda and former Yugoslavia, the jurisdiction of the respective criminal courts was based on UN Security Council’s resolutions. For the Nuremberg Trial, there was Germany’s consent. Perhaps the only example of delegation of territorial jurisdiction from a state to an international court, is that of the Special Court for Sierra Leone, which, in 2003,  convicted the President of Liberia, Charles McArthur Ghankay Taylor, for his involvement in Sierra Leone’s civil war and relevant crimes.^[4] After the conviction and the subsequent arrest warrant, Liberia instituted proceedings against Sierra Leone before the International Court of Justice, invoking the principle of state sovereignty and the immunity of its Head of State from the criminal jurisdiction of another state.^[5]

Taylor also appealed against the convicting decision before the Special Court and asked for the annulment of the arrest warrant, invoking the sovereign equality of states, governmental officials’ immunity from criminal prosecution, and the non-international nature of the court (par. 6-8). His request was rejected on the basis of the fact that the court was legitimately established by an agreement between Sierra Leone and the UN Security Council and it was mandated to examine violations of international humanitarian law on the territory of Sierra Leone, irrespective of nationality of the perpertrators (par. 37-40). The immunity of states stems from the principle of sovereign equality, but this does not prevent officials from being prosecuted before international criminal courts (par. 50-53). Taylor was eventually arrested in 2006 and in 2012 was convicted to a 50-years sentence.

Conclusion

The jurisdiction of the ICC indeed remains a subject of controversy, both politically and theoretically, as it doubtlessly touches on really sensitive issues of international law and state sovereignty. This is reflected on the US resistance in recognizing the ICC’s jurisdiction, but also on the relevant scholarship, in which competing theories over the ICC’s jurisdictional basis can be found. The Prosecutor stated during an interview for the imposed sanctions that she remains focused on her duty and that for her “it’s about the Law, not about the Power”.

***First published on 10 November 2020 here (in Greek).***