Visa ban on ICC personnel poses limit to independent investigation in Afghanistan
Recently, the United States’ Secretary of State, Mike Pompeo, announced that visa restrictions would be applied to personnel of the International Criminal Court (ICC) directly involved in ICC investigations of US citizens for war crimes and other abuses allegedly committed in Afghanistan. The restrictions also extend to persons who “take or have taken action to request or further such an investigation.”
The Coalition for the International Criminal Court – a global network of civil society organizations in 150 countries fighting for justice for victims of genocide, war crimes, crimes against humanity, and the crime of aggression through national courts and the International Criminal Court – greatly regrets this move by the Trump Administration, and the inaccuracies presented by the Secretary of State in his statement.
Since 2009, according to the UN, fighting in Afghanistan has killed 24,841 civilians and injured 5,347, with 2016 proving the deadliest yet for children. International crimes including murder; persecution; gender crimes; intentionally directing attacks against humanitarian personnel and against protected objects; conscription of children; and sexual violence have allegedly taken place throughout this period.
The ICC has been considering the situation in Afghanistan since 2007.
In November 2017, the ICC prosecutor, Fatou Bensouda, had requested authorization from ICC judges to open an investigation into war crimes and crimes against humanity allegedly committed on the territory of Afghanistan since 1 May 2003, as well as war crimes closely linked to the situation in Afghanistan allegedly committed on the territory of other states since 1 July 2002. This announcement was broadly welcomed by civil society and other observers as a crucial if tentative step towards justice for victims.
Although the ICC judges are yet to rule on the Prosecutor’s request, the move by the Trump administration makes real on a threat of sanctions made in September 2018 by the US National Security Adviser, John Bolton, who warned that if the investigation advanced, the ICC would face “consequences,” including travel limitations and possible economic sanctions.
The position of the Trump administration raises serious concerns among civil society, states, and other stakeholders seeking accountability for international crimes wherever they occur.
“The ICC, as a court of law, must continue to do its independent work, undeterred, in accordance with its mandate and the overarching principle of the rule of law,” said William R. Pace, Convenor of the Coalition for the ICC.
In his remarks, Pompeo alleged that the “investigation into the situation in Afghanistan could illegitimately target the American personnel for prosecutions and sentencing.” The ICC is the only permanent international court with the mandate to investigate and prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. It can intervene only when the State in question is unable or unwilling to carry out genuine investigations or prosecutions.
The United States is not a member of the ICC. In 2000, under the Clinton administration, the US signed the Rome Statute, however, the treaty was never submitted to Congress for ratification. In 2002, John Bolton “unsigned” the Rome Statute. However, Afghanistan has been a member of the ICC since 2003. The ICC can thus exercise its jurisdiction over the crimes committed on the territory of Afghanistan or by its nationals from 1 May 2003 onwards. Thus, the Court is legally able to prosecute the US nationals suspected of committing crimes within the context, following the jurisdictional provision established under Article 12(a) of the Statute.
“The foundational principle of the Rome Statute is that states or other actors cannot commit genocide, war crimes, or crimes against humanity and claim immunity,” said Kirsten Meersschaert, the Coalition for the ICC’s Director of Programs. “The ICC’s role is to ensure justice for the victims of these crimes and the Coalition supports all actions that will end impunity for the gravest international crimes,” Meersschaert added.
In its response to Pompeo’s remarks, the International Criminal Court noted that it “stand[s] united against impunity. The International Criminal Court is an independent and impartial judicial institution crucial for ensuring accountability for the most serious crimes of concern to the international community… The Court is non-political and acts strictly within the legal framework of the Rome Statute, its founding treaty. One of the cornerstones of the Rome Statute system is that it recognizes the primary jurisdiction of States to investigate and prosecute atrocity crimes. The jurisdiction of the Court is complementary to domestic jurisdictions.”
Pompeo also noted that US visa restrictions may be extended to ICC personnel involved in ICC investigations of allied personnel, including Israeli citizens. The situation in Palestine, which allegedly involves crimes committed by Israeli forces, has been under preliminary examination by the ICC Prosecutor since 16 January 2015.
“We do not advocate on specific situations – but once the ICC has undertaken an investigation and prosecution, we strive to support the most effective implementation – including the strong provision of fair trial principles and resources,” affirmed Pace.
Reactions from civil society
Mr. Daniel Balson, Advocacy Director at Amnesty International USA, weighed in on the development, stating, “This announcement is the latest attack on international justice and international institutions by an administration hell-bent on rolling back human rights protections.” “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,” Balson continued.
“The US decision to put visa bans on ICC staff is an outrageous effort to bully the court and deter scrutiny of US conduct,” said Richard Dicker, International Justice Director at Human Rights Watch. “Trump administration threats against the ICC mask the real problem, the failure of US authorities to address past torture and other abuses by the CIA and US armed forces…This is precisely the ICC’s role, to deliver justice for victims when all other doors are closed,” Dicker continued.
In a press release by No Peace Without Justice, an organization which campaigns to protect human rights, democracy, the rule of law and international justice, the organization declared, “Secretary Pompeo should be held to account for today’s blatant attempt to pervert the course of justice by threatening, intimidating and retaliating against those who are simply carrying out their duties to ensure justice for the crimes committed in Afghanistan, irrespective of who the perpetrators may be.”
Jamil Dakwar, Director of the Human Rights Program at The American Civil Liberties Union, opined, “This is an unprecedented attempt to skirt international accountability for well-documented war crimes that haunt our clients to this day. It reeks of the very totalitarian practices that are characteristic of the worst human rights abusers, and is a blatant effort to intimidate and retaliate against judges, prosecutors, and advocates seeking justice for victims of serious human rights abuses. We won’t rest until we get to the bottom of this, and are considering options on behalf of those potentially impacted by this misguided and dangerous policy.”
James Goldston, Executive Director of the Open Society Justice Initiative