The ICC’s Preliminary Investigation in Afghanistan (Updated)

by Kevin Jon Heller

I don’t have any deeper insight into the situation than Ken, but there certainly has been pressure on the Prosecutor to investigate Afghanistan for some time — both because it’s not in Africa and because of US/NATO involvement in the armed conflict there.  It is important to stress, though, that the OTP has not formally opened an investigation; it is simply collecting information in order to determine whether a formal investigation is warranted — and has been since 2008.  Moreover, absent a referral from a State Party, the Pre-Trial Chamber would have to authorize the OTP to open a formal investigation.

In terms of substantive crimes, I agree with Ken that it is very unlikely the OTP would prosecute attacks that caused excessive collateral damage.  As I have explained in an essay that focuses on war crimes involving environmental damage but is equally applicable to civilian damage — it’s the same Article in the Rome Statute, Art. 8(2)(b)(iv) — a military commander is only responsible for an objectively excessive attack if he subjectively concluded, prior to the attack, that it would be clearly excessive.  (“In the knowledge that…”)  That is very unlikely, to say the least.

Note also that the other violations of IHL that Ken mentions — such as the failure to warn or the failure to distinguish in and of itself — are not war crimes under the Rome Statute.

What, then, would the OTP prosecute?  I imagine it would focus on the Taliban’s intentional crimes against civilians, which have been very well documented by those terrorist-loving NGOs Human Rights Watch and Amnesty International; similar crimes committed by Afghani government officials who used to be warlords; and — perhaps — the systematic torture committed by US and NATO soldiers at Bagram and elsewhere in Afghanistan.  Prosecutions in the final category would obviously be very politically charged, but they would also be richly deserved.

UPDATE: As I was researching my response to New Stream Dream’s questions, I realized that Afghanistan has a “bilateral immunity” agreement with the US.  If that agreement is valid, Article 98 of the Rome Statute would recognize Afghanistan’s right to not turn a US citizen over to the ICC.  Whether such agreements are valid, however, remains to be seen; many States — 24 of the 29 NATO countries, for example, including the UK, France, and Germany — believe that they are inconsistent with the object and purpose of the Rome Statute, at least insofar as they post-date a State’s ratification of the Rome Statute.  The issue is particularly difficult in the case of Afghanistan: although its Article 98 agreement was signed prior to ratification — agreement signed in September 2002; Rome Statute ratified in February 2003 — that agreement is an executive agreement, not a ratified treaty.  I am not an expert in such things, but I would think that the ICC would be somewhat less likely to recognize the former than the latter.  Readers?

UPDATE 2: Dapo Akande has a must-read post on US/NATO targeting of Afghan drug traffickers at EJIL: Talk!.

19 Responses

  1. Kevin, thanks for that – very useful.

  2. Professor Heller,

    I have a fundamental question.  Given that the US has not accepted the ICC’s jurisdiction, how can the ICC exercise jurisdiction over US soldiers in Afghanistan? Clearly, the US has the right under international law (for better or worse) not to participate in the ICC regime.  Now, you may say that because the territory of Afghanistan has accepted ICC jurisdiction, then the ICC can exercise jurisdiction over US soldiers in Afghanistan, but I think that is flawed because the US invaded Afghanistan pursuant to the right of self defense.  To say that the US somehow picked up international legal obligations to subject itself to the ICC because it was forced to invade Afghanistan to defend itself seems wrong.

  3. NSD,

    I don’t know what I can say that will convince you.  As you point out, the Rome Statute gives the Court  jurisdiction over any crime committed on the territory of a State Party.  The right of self-defence does not give US forces the right to commit war crimes — one of the most basic principles of IHL is that the jus in bello is distinct from and unaffected by the jus ad bellum.  Do you think the US would be justified in arguing that Afghanistan would not have jurisdiction to initiate domestic prosecutions of US soldiers who commit war crimes, simply because the soldiers were only in a position to commit them because of the right of self-defence?  If not, why can Afghanistan not transfer its jurisdiction to an international court?  That ability, after all, was the jurisdictional basis of the IMT, of which the US was the driving force.

  4. Professor Heller,

    I agree with you that the right of self-defense does not give the US forces the right to commit war crimes, but I do not think that is the same question as whether the ICC has the right to exercise jurisdiction to try said crimes.  At the heart, my argument is that the ICC’s ability to try US soldiers, at some point, has to have some basis in the consent of the United States.  That consent is lacking here.

    I would object to two points to your post.  First, I disagree with your argument about the jurisdictional basis of the IMT.  Please correct me if I am wrong, but I do not think the German government ever actually objected to the jurisdiction of the IMT.  But even if they did, one could read consent for the IMT out of Germany’s unconditional surrender.  So, you can find an act of consent by Germany somewhere.  In contrast, the United States has never consented to the jurisdiction of the ICC.

    Second, the US has not objected to domestic prosecutions of war criminals, but has objected to prosecutions by the ICC.  While you may not like that as a policy point, again, the US has the right to draw fine distinctions.

    One more point, do you really care about this argument?  I mean, I take if from you general posts/attitude that consent is not something that you feel is the basis for modern international law.  So I would ask if this matters for your views on the legitimacy of the Court.

  5. NSD,

    Consent is certainly important in international law, but it does not prohibit the ICC from prosecuting US soldiers in the circumstances you describe.  Per Lotus, a State is permitted to do anything that is not explicitly prohibited by international law.  If you accept that Afghanistan has the right to try US war crimes committed in its territory, the burden is on you to show that international law prohibits Afghanistan from transferring its jurisdiction to an international court.  There is no such rule of international law, as the experience of the IMT demonstrates.  Germany never consented to the London Charter, the inter-allied treaty creating the IMT.   And the Tribunal explicitly held that such consent was irrelevant to the court’s ability to try Germans:

    The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law.

    Differently put, in the absence of an agreement to the contrary (and see the updated post on this), the US has consented to the ICC’s jurisdiction — by sending troops into the territory of Afghanistan, a Party to the Rome Statute.  The US cannot say, “you can exercise territorial jurisdiction over our soldiers, but that’s it.”  There is no rule of international law that draws the “fine distinctions” you want.  Afghanistan can prosecute such crimes itself; it can extradite a US soldier to another state that also has jurisdiction over the crime (via passive personality jurisdiction, for example); or, in the absence of an agreement with the US to the contrary, to an international court.

    Let me ask you a question: do you think extradition violates international law in the absence of the consent of the suspect’s state of nationality?  Could Afghanistan not extradite a US soldier it captures to Pakistan or India or France?  If not, why not?

    Similarly, do you think universal jurisdiction for crimes other than grave breaches (required by the Geneva Conventions, which are universally ratified) violates international law?  For example, do you believe that international law would prohibit Spain from prosecuting US officials involved in torture simply because the US was opposed to the prosecution?  If you do, on the basis of what rule of international law?  “Consent” again?

  6. Kevin,

    I have no special knowledge or information on this point.  I also express no opinion on whether any country’s armed forces have committed war crimes in Afghanistan.  I also make no assertions about universal jurisdiction other than to note confusion regarding the procedural aspects of exercising it.

    That said, I wonder whether your above analysis or assertions would change if there were a Status of Forces Agreement in which the government of Afghanistan agreed not to exercise jurisdiction over U.S. or NATO soldiers?  Can the government defeat the ultimate purpose of such an agreement by accepting jurisdiction of an international tribunal?

    Similarly, does it matter to your above proffered analysis whether the U.S. or other forces being investigated by the ICC are members of the ISAF there under UN Security Council mandate?  Would that change your extradition or jurisdictional analysis?

    Again, I am not sure what I think about this whole issue.  However, I wonder if you might address how these factors would influence you above statements.

    Best to all,


  7. I hate my “r” button.  That should have been “your” above statements.

  8. John,

    The answer, I believe, depends on two considerations: how the ICC ultimately interprets Article 98; and when the US signed the SOFA with Afghanistan.  Most scholars — including me — believe that Article 98 is intended to recognize international commitments that pre-exist a State’s ratification of the Rome Statute.  In this view, a State would be acting inconsistently with the object and purpose of the Rome Statute — combating impunity — if, despite being a member of the Court, it entered into a SOFA or Article 98 agreement that immunized nationals of States who commit war crimes on its territory.

    As far as I know, there is no SOFA between the US and Afghanistan that predates the latter’s ratification of the Rome Statute in February 2003.  My position, then, would be that Afghanistan is no longer free to negotiate a SOFA with the US that would prohibit it from surrendering a suspect to the ICC.

    As for ISAF, my answer would be the same.  If the Afghan Transitional Authority entered into an agreement with the UN that ceded jurisdiction over ISAF forces prior to February 2003, I believe that the ICC would have to honor it.  (I don’t think that’s the case, but I am not sure.)  I do not believe that the Security Council has the general authority to divest the Court of its jurisdiction through an agreement of that kind; in my view, the SC’s only authority over the Court comes via Article 16, which governs deferral resolutions.



  9. Kevin and John,
    The Military Technical Agreement between Afghanistan and ISAF (concluded in 2002 before Afghanistan ratified the Rome Statute) does include a clause precluding surrender to the ICC. Section 1(4) of Annex A to that agreement provides that:
    “The Interim Administration agree that ISAF and supporting personnel, including associated liaison personnel, may not be surrendered to, or otherwise transferred to the custody of, an international tribunal or any other entity or State without the express consent of the contributing nation.” 
    This agreement would fall within Art. 98(2) of the Rome Statute which requires the Court to respect such non-surrender agreements. The US Biliteral Immunity Agreements as currently worded goes beyond what Art. 98(2) permits. This is because those agreements preclude surrender of persons not sent by the US and Art. 98(2) is about non-surrender of persons sent by a State without the consent of that State. However, given that US forces are clearly sent by the US that aspect of the bilateral agreement that covers them does fall within Art. 98(2). Also, recall that a substantial part of US forces in Afghanistan (the majority?) are part of ISAF and covered by the Military Technical Agreement.
    I don’t agree with Kevin that only those Art. 98(2) agreements concluded after entry into force of the Rome Statute are valid. There is nothing in the text, drafting history or subsequent practice of parties to suggest this. Also, it isn’t acting to defeat the object and purpose of the treaty to conclude an Art. 98(2) agreement given that such agreements are very limited in their effect (they apply only to a limited category of persons). Also, if such agreements are contrary to the  the object and purpose of the treaty how is that pre-existing agreements don’t defeat the object of the treaty?
    There is significant State practice (supported by the US and apart from Nuremberg) as well as important points of principle that suggest that States can transfer their criminal jurisdiction over non-nationals to international tribunals. To give one example, the US supported the prosecution of Liberian President Charles Taylor by the Special Court of Sierra Leone, though that tribunal is created by a treaty to which Liberia is not a party. Likewise, the US supported the prosecution of Serbian officials by the ICTY at a time when the US argued that Serbia (the Fed. Rep. of Yugoslavia) was not a UN member. I deal with these issues (and indeed the Art. 98(2) points raised above) in a Journal of Int. Crim. Justice article in 2003

    Kevin and Ken,

    I also wonder which substantive crimes, the ICC Prosecutor may be looking at in relation to NATO/the US (that is, if he is considering any NATO/US action). However, in a recent post on EJIL:Talk! I question the legality of the  US/NATO’s policy of targeting individual drug traffickers

  10. Kevin and John,

    Just a few quick thoughts:

    Regardless of what the proper interpretation of Art. 98 is, if Afghanistan had a treaty with the US which would specify that US personnel were exempt from Afghan jurisdiction, that treaty would still be binding on Afghanistan. Contrary to the object and purpose of the Rome Statute it may be, but that is perfectly irrelevant for its binding nature on its parties. In such a situation, Afghanistan would find itself in a situation of unresolvable norm conflict, i.e. in which it assumed two contradictory obligations – one towards the ICC and the Statute’s parties, and one towards the US. Afghanistan would then have a political choice to make as to which obligation to honor, and which to breach, thereby incurring state responsibility.

    Second, if there was a UN Security Council resolution specifying that US personnel in Afghanistan were exempt from Afghan jurisdiction, then this resolution would arguably prevail over Afghanistan’s obligations under the Rome Statute, pursuant to Article 103 of the UN Charter. In other words, states would have to comply with the UNSC resolution over the Rome Statute, unless the UNSC resolution itself was seen as contrary to the Charter, which is possible but unlikely.

    (Disclaimer – I haven’t actually looked at any of the UNSC resolutions or US/Afghanistan treaties, so the preceding thoughts were given solely in the abstract).

  11. Let me second Kevin’s pointing to Dapo’s post at EJILTalk!  Very important!

  12. Professor Heller,

    As I understand your argument, the US invasion of Afghanistan is the moment of consent that creates international legal obligations from the US to the ICC signatories (UK, France, etc.) to allow ICC jurisdiction over US soldiers.

    So, under your theory:

    When Israel invades an Arabic League state that has ageed not to recognize Israel, then Israel has an international legal obligation to said states not to recognize … itself?

    If Russia invaded China using knock-off American computers, then the US could bring an IP claim against Russia under China’s WTO accession protocol for any said computer in Russia.

    Tis the wacky world of Hellerian consent.  I think I will call it the consent as swine flu theory, you can catch it from your neighbors!!!!!

  13. NSD,

    I’m glad you write “as I understand your argument,” because you obviously made no attempt to actually understand it — as your examples, particularly the first one, indicate.  There is no point in trying to reply, other than to note that if an Israeli soldier commits a war crime on the territory of a state that doesn’t recognize its right to exist, it will have a very difficult time arguing that the territorial principle doesn’t apply.   And if the territorial principle applies, that anti-Israel state can transfer its jurisdiction to an international court, as Dapo Akande explains.

    I guess, in your view of international law, countries that don’t like the US are not allowed to prosecute US nationals who commit, say, murder on their territory.   Good luck with that.

  14. Two quick notes,
    to NSD, if an foreigner committs a crime in US territory, would the US be forbidden to prosecute him/her? No. Why? because the US has the right to exercise its jurisdiction in the its territory. The Rome Statute departs from the same logic, from the 2 most common accepted basis of jurisdiction, nationality and territory. The ICC then is the extension of national jurisdiction. The ICC can do what Afghani courts could do, namely to prosecute whoever no matter which nationality, that committs a crime in its territory. The Non Surrender Agreements attempt against the purpose and object of the Rome Statute, which is no impunity for those crimes, in 2 ways, first in purportedly forbidding the surrender of US nationals to the ICC, but also in forbidding the exercise of Afghan jurisdiction. I will not dwell further on the validity of the Non Surrender Agreements, BUT in order to analyse further their effects one has to refer to the ACTUAL agreement, which by the way seems to have disappeared from the US State Department website. Not all agreements are the same. and some nations, like Jordan, managed to obtain a very restrictive one.

    For more updates, I want to refer to you to the recently released weekly updates of the OTP.

  15. For the purposes of reference, here’s an online copy of the Rome statute:


    I can’t say there’s anything in the bare language of Article 98 that would require the agreement be made prior to ratification.

  16. I want to make one last point to those who have focused on territorial jurisdiction.  I agree with those who say that Afghanistan could exercise territorial jurisdiction over US soldiers under our hypo.  It does not follow, however, that the ICC could step into Afghanistan’s shoes and piggy back on Afghanistan’s jurisdiction.  Here is why:

    The whole point of the ICC is to create an international legal “regime” to prosecute war crimes etc.  The ICC is a “regime” in that all the ICC members have interlocking, opposable international obligations to each other.  If country X does not live up to its ICC obligations, then it ha committed an international breech vis-a-vis country y, z and all other ICC members. 

    By going into Afghanistan, the US has not incurred international legal obligations to all the other members of the ICC.  While Afghanistan may have rights vis-a-vis the US stemming from the US’s consent (through state practice) to accept its territorial jursidiction, it does not follow that the US has agreed to subject itself to the ICC’s regime of legal obligations from the US to France, Germany, the UK etc.

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