United States Revokes Visa Access For ICC Members Seeking to Prosecute Afghanistan War Crimes

On March 15th, United States Secretary of State Mike Pompeo announced that the country will revoke or deny the visas of International Criminal Court (ICC) personnel seeking to bring the potential war crimes committed in Afghanistan by US forces under investigation. According to Al Jazeera, the request cited information that US military and intelligence agencies “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period.” It is still being decided whether an investigation will be authorized. The administration claims that the court would infringe upon American rights to a trial in front of a jury, as well as U.S. sovereignty, and further questioned the motives of the institution.

The United States asserts that the ICC does not have any authority over American citizens and military personnel, as they are not a member of the court, nor a signatory of the Rome Statute (which grants the ICC jurisdiction to investigate and prosecute its four internationally recognized crimes if they are committed in the territory of a state party). However, since Afghanistan is a signatory and the atrocities occurred on its soil, it does fall under the ICC’s jurisdiction. While the Clinton administration signed the Rome Statute in 2000, it was never ratified by the Senate. When George W. Bush’s administration took office in 2001, the American Service Members Protection Act, seeking to protect U.S. Military from prosecution by the ICC impeded ratification. Now serving as National Security Adviser for the Trump administration, then State Department official John Bolton “unsigned” the statute in 2002, effectively severing any official ties with the ICC in the name of protecting US sovereignty. However, Americans are subject to the court of any country in which they commit a crime, therefore the ICC’s jurisdiction is no less legal than that.

The ICC has 123 member states, including the entire European Union, but along with the United States, major powers Russia and China are among those that have not joined. The United States seems to hold a lot of animosity towards the ICC and has claimed that its domestic courts can handle any sort of prosecution regarding its military, implying that the ICC would never be able to have jurisdiction within U.S. territory anyway as domestic courts would never qualify as “unwilling” or “unable” to investigate a crime. Yet, this ignores the core of the ICC, which is to step in when a country is incapable or unwilling to try its people in question. If the United States takes accountability for what its troops do abroad use its own judicial processes, then the ICC has no reason to involve itself, yet one must question whether this is the case.

By going after the prosecutors at the ICC trying to bring people to justice, the United States is demonstrating a lack of accountability for their citizens as well as a blatant disrespect for international law. Human Rights Watch called the visa ban “a thuggish attempt to penalise investigators” and stated that “the Trump administration is trying an end run around accountability … Taking action against those who work for the ICC sends a clear message to torturers and murderers alike: Their crimes may continue unchecked.” Not only does this promote further violence by eliminating a strong deterrent, but it also provides grounds for the normalization of these sorts of actions.

It is evident that the Trump administration is actively seeking validation for the actions they know to be unethical when Al Jazeera quotes Secretary of State Mike Pompeo stating “We are determined to protect the American and allied military and civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation.” Pompeo is attempting to justify the government’s actions by utilizing nationalistic rhetoric and buzzwords such as “fear” and “unjust” to evoke an emotional response from the American people. Yet, these actions are only protecting the perpetrators in the United States, not the general population, nor the victims of war crimes and human rights violations. Amnesty International notes that “while victims’ rights should be the very top priority of the United States government, throwing roadblocks in front of the ICC’s investigation undermines justice not only for abuses committed in Afghanistan, but also for the millions of victims and survivors throughout the world who have experienced the most serious crimes under international law.”

Pompeo also declared that if the ICC did not drop their preliminary investigation, the United States would take additional measures, including economic sanctions against the court. Yet, imposing sanctions also harms the economy of the state imposing them and would therefore not provide the protection to the American people that they claim these actions will give. Essentially, the current administration is willing to damage the American economy in order to protect the few that allegedly committed war crimes — and to what end? Furthermore, it seems that it either has not been taken into consideration or the administration just hoped that no one would notice that it is not feasible to impose economic sanctions on an entity that does not engage in trade… Unless, the government meant that it would impose sanctions on the member countries, but that would effectively take away a majority of the country’s trading partners.

The ICC is not an enemy body and the United States needs to stop acting as if it is. Its goal is to bring war criminals to justice if the national courts are unable or unwilling to conduct the trial themselves. The international justice director for Human Rights Watch, Richard Dicker, stated in response to the United States’ decision that “ICC member countries should publicly make clear that they will remain undaunted in their support for the ICC and will not tolerate US obstruction.” What Dicker does not mention, however, is how this should be achieved. The ICC’s widespread membership and in turn support has never changed the United States’ opinion on the court, so it seems that fairly drastic measures would need to be taken in order to actually demonstrate that U.S. interference will not be condoned.

An option to achieve this would be for member countries to impose sanctions on the United States, which would prove to be much more effective and sustainable than imposition operating the other way around. As mentioned before, this would effectively cut off a majority of the United States’ trading partners, and therefore would not likely affect the sanctioning countries very much, as it would probably be quite short-lived. Other options include publicly announcing their support for the Afghanistan investigation itself as opposed to the International Criminal Court.

On the more pedagogical side of possible solutions, would be attempting to sit down with United States officials and break down what it is that the ICC does and what it wants to do in this case. Perhaps giving them the opportunity to try the people in question domestically, so that there is no question of the trial violating the U.S. Constitutional right to trial before a jury. There seems to be a misunderstanding on what the International Criminal Court exists to achieve, but creating a dialogue and learning the other side’s perspective could be very fruitful moving forward. Perhaps this would eventually lead to the United States re-signing the Rome Statute and actually joining the Court.

By taking action against the International Criminal Court, the United States is condoning human rights violations and war crimes. This allows perpetrators to think that their behavior is acceptable and they will continue with it, as perhaps their only deterrent is discredited. The investigations in Afghanistan should follow through, undaunted by the United States’ fear tactics. This is no way to act as a democracy and as a powerful actor on the world stage. This situation in general could be avoided if the current administration took the time to understand the functions of the International Criminal Court and why it exists. While it is certainly not a perfect system, it aims to achieve an act of goodness and that must be supported for the sake of international law’s ongioing legotimacy and recognition.

Maura Koehler