Last month, the Appeals Chamber of the International Criminal Court in The Hague authorised the Office of the Prosecutor to commence investigations into alleged war crimes and crimes against humanity committed in Afghanistan from May 1, 2003.
This unanimous decision by Appeals overturned the decision of the Pre- Trial Chambers rendered almost a year ago which rejected the
Prosecutor’s request to investigate the situation in Afghanistan. In the Prosecutor’s request and subsequent appeal, the alleged perpetrators identified were the Taliban, Afghan National Security Forces, and the United States armed forces in Afghanistan, as well as members of the Central Intelligence Agency (CIA) operating inside and outside of Afghanistan, namely in Romania, Lithuania, and Poland.
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Naturally, this ruffled a lot of feathers in the US which has criticised the ICC since its inception in 2002. In response to the decision of the Appeals Chamber, US Secretary of State Mike Pompeo lambasted the ICC for masquerading as a legal body. He concluded his resentment by reiterating that the US is not a party to the Rome Statute and the US will take all necessary measures to protect its citizens from the Court’s regime. This resonates with former statements and actions taken by the US pertaining to the ICC.
These statements are not merely political but founded on US’s national legislation, namely the American Service-Members’ Protection Act 2002, promulgated right after the Rome Statute came into force. Informally dubbed The Hague Invasion Act, it authorises the President to take ‘all means necessary’ to free American citizens and allies detained or imprisoned by or on behalf of the ICC.
It is true that the US does not have treaty obligations under the Rome Statute as a non-party State. However, Afghanistan does, pursuant to its ratification of the Statute in February 2003. The Court is thus not barred from exercising its jurisdiction over incidents that manifested in Afghanistan from May 2003, notwithstanding the nationality of the accused. Similarly, a corollary legal obligation to cooperate with the Court is incumbent on Afghanistan.
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Legally, the duty of cooperation is thus apparent while politically, the ICC will most likely face impediments as it issues summons or arrest warrants, and awaits their execution, against accused Afghan officials and members of the Taliban.
It is not unprecedented for the ICC to have authorised investigations into the situation of a non-party State. It has happened thrice in cases concerning Sudan, Libya, and Myanmar. Former Sudanese President Omar Al- Bashir remains at large 11 years after the first arrest warrant was issued against him, is particularly relevant as it highlights the limitations of the ICC when a non-party State refuses to cooperate.
Not imposing treaty obligations on a non-party State is a fundamental corner-stone of international law. Therefore, unless the US consents to cooperate through special agreements or accepts ICC’s jurisdiction, legally, the Court’s hands are tied.
A political recourse would be to refer the matter to the Security Council which can legally invoke US’s cooperation with the Court. Given the influence of the US in the Security Council, this seems like a far cry and not a direction the Court would be taking in the foreseeable future. The global pandemic has exacerbated the impediments to effective and efficient investigations. Field activities, including mobilising investigators and local partners in Afghanistan to collect evidence is apparently hindered.
Additionally, The Hague Invasion Act stands as a stalwart between the ICC and US. Unless waived by the President, it explicitly prohibits any US entity or agency, including the judiciary to cooperate with the Court upon receiving a request for cooperation. This prohibition extends to extraditing or transferring any persons at the behest of the ICC.
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The Prosecutor and the Court now have an important and arduous task of soliciting cooperation from the US. The direction this case takes will potentially shape the contours of ICC’s relation with non-party States, including Nepal. More specifically, non-party States could be brought within the ambit of the Court for the purposes of cooperation in relation to alleged aberrations of its State forces or officials committed on the territory of a State party before, during, or after a conflict.
This is directly pertinent to Nepal which has some 5,300 peacekeepers deployed in 11 conflict-fraught countries, out of which five have ratified the Rome Statute. In the unfortunate event that Nepali peacekeepers commit a war crime in these ratifying States, which upon the course of the investigation is identified by the ICC, would Nepal extend its cooperation to the Court or challenge the legitimacy of it? The ICC-US paradigm in the next few months will provide a preview of how the Court will manage non- cooperating non-party States.
This will have a bearing on Nepal’s stalled truth and reconciliation process that has not made much progress in bringing survivors and affected- persons of the armed conflict closer to justice.
Nischala Arjal works in legal defense at the United Nations International Residual Mechanism for Criminal Tribunals in The Hague. Views here are her own.