The international community was stunned when the president of the United States of America, Donald Trump, took an unprecedented decision when he signed an executive order imposing sanctions on several individuals associated with the International Criminal Court (ICC). The sanctions came in response to the ICC’s decision to authorize its top prosecutors to pursue investigations into crimes committed in Afghanistan, including those committed by the US soldiers as well as the ICC’s preliminary examination into crimes committed in the Palestinian territories by Israel (it, therefore, was not surprising that Israel, one of America’s greatest allies applauded the decision by the US to sanction the Court).

According to the Court’s document, the Office of the Prosecutor sought to investigate alleged crimes committed by the Taliban and other armed forces, Afghan forces, US forces, and the CIA, which include methods used for interrogating detainees, war crimes of torture, cruel treatment, rape as well as other forms of sexual violence in Afghanistan. The questions that must be answered, therefore, are; whether the ICC can indeed investigate the actions of the US in Afghanistan and what effect the sanctions have on the ICC.

The International Criminal Court is an independent judicial institution. Its establishment in 2002 signalled the commitment of many countries to fight impunity for the worst crimes. It has powers as made evident in Article 1 of the Rome Statute of the International Criminal Court to exercise its jurisdiction over persons for the most serious crimes of international concern. Furthermore, Article 5 of the Rome Statute empowers the Court to investigate and prosecute war crimes, crimes against humanity, genocide, and the crime of aggression. 

It must be noted that although the US participated in the negotiation that led to the creation of the Court, it is not a party to the Rome Statute and has continued to oppose the actions of the Court as well as its attempt to investigate its citizens. Thus, President Trump’s decision to impose sanctions on the Court coupled with the US Secretary of State, Mike Pompeo’s accompanying statement calling the ICC’s action ‘an action by an unaccountable political institution masquerading as a legal body’ was definitely not unanticipated.

As earlier stated, the ICC has jurisdiction to try offences listed in Article 5 of the Rome Statute. In addition, Article 13 of the Rome Statute is explicit as to instances where the Court can exercise jurisdiction, which are; when there is a referral from a state or the UN Security Council acting under Chapter VII of the UN Charter and lastly where the Prosecutor initiates an investigation of such crimes in accordance with Article 15 of the Statute. The Prosecutor cannot of his/her own volition begin an investigation; the Prosecutor is required under Article 15 to submit a request for authorization of an investigation from a pre-trial chamber of three judges who shall authorize the commencement of an investigation where there is a reasonable basis to proceed with an investigation.

It is therefore obvious from the above that the investigation of the ICC into alleged crimes committed by the US in Afghanistan is not a political witch hunt as claimed by President Trump and his Secretary of State, Mike Pompeo. Rather it is within the Court’s powers as articulated in Article 13 and 15 of the Rome Statute, considering that there was a reasonable basis to commence an investigation. Perhaps, one might wonder if the Court can indeed investigate these crimes considering that the US has never been a party to the Rome Statute. The answer to that can be gleaned from Article 12 of the Rome Statute, which grants the Court jurisdiction over nationals of countries such as the US who are not parties to the Court’s Statute. Citizens of a non-member country such as the US who commit any of the crimes echoed in Article 5 of the Statute on the territory of a Member State of the ICC can be subject to the jurisdiction of the Court. Thus, US citizens, including Mike Pompeo himself, can be subject to the Court’s jurisdiction for the alleged crimes committed in the Afghanistan territory.

It is ironic how the US prides itself as a global epitome of democracy and the rule of law (which includes the independence of the judiciary) and has continued to condemn violations of human rights in countries across the world such as Venezuela, yet it chooses to impose sanctions on a Court which seeks to ensure accountability for wrongful acts committed by its citizens. The action of the US makes one wonder what the country has got to hide. It is acknowledged that the International Criminal Court itself is not perfect and indeed has its shortcomings, one of which is the delay with which cases are concluded, but in spite of this, the ICC remains an international mechanism to hold individuals accountable for heinous crimes committed against the international community and the sanctions imposed by President Trump has a far-reaching and chilling effect on not just the ICC alone but other international organizations. His action undermines the powers of the Court to hold the government of countries accountable for crimes committed by their citizens. It would also be a doorway for the increased disregard of the ICC by other countries, especially countries with tyrants as leaders. It is a threat to the rule of law globally.

Finally, it is not clear how these sanctions would take effect, but it is important for the US to be open and cooperate with the ICC in the pursuit of justice and accountability for the alleged crimes committed by its forces in Afghanistan. Likewise, the international community must not keep mum; they must be vocal on the need for President Trump to revoke the sanctions imposed on the Court as well as ensure that rule of law is respected globally.

About the Author

Mosunmola Adefarati

Mosunmola Adefarati is a recent graduate of Law from Obafemi Awolowo University, Ile-Ife. She has an astute interest in public international law. She interned at the LexLata Centre for International Law and Constitutionalism where she undertook extensive research on topical issues in international law. At present, she is a student member of the American Society of International Law. In her spare time, she enjoys watching movies, singing and sleeping.