More on What’s Wrong with the ICC’s Decision on Afghanistan

[Gabor Rona is a Visiting Professor of Law at Cardozo Law School, where he directs the Law and Armed Conflict Project.]

The Decision of the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) to decline to proceed with cases involving Afghanistan “in the interests of justice” is not only likely ultra vires, it is appalling. That’s not to say that all the arguments put forth by the PTC are without merit. And were it not for U.S. bellicosity and threats aimed at the ICC prior to the PTC’s Decision, those arguments may have been enough to prevent this misguided decision from impugning the court’s integrity. Instead, we can now fairly predict several reactions, all harmful to the ICC.

First: that the ICC blinked at the exercise of jurisdiction over nationals of a powerful State that threatened to prosecute ICC officials, should they take action against Americans. The link between such an empty, absurd threat and the ICC’s Decision is, indeed, speculative, but such speculation is not irrational. Indeed, it serves to support a larger crisis of confidence about the ICC on the ground that, since its inception, it has been picking on Africa and turning a blind eye to atrocities in or committed by nationals of Western states. While there are good arguments in support of an Africa-centric focus (that’s where the mass atrocities have occurred), and evidence that the Court is not entirely West-phobic, this new Decision will certainly give the Court’s critics a powerful “I told you so” moment. And perhaps that’s perfectly fine with the U.S. administration, but it should be a cause for grave concern among fans of international justice.

Second: that the ICC blinked at the exercise of jurisdiction over nationals of a State (the U.S.) that is not party to the Rome Statute which establishes the ICC. That the ICC would claim the right to prosecute Americans was proclaimed an insult to U.S. sovereignty and the rule of law by Secretary of State Pompeo. He’s wrong. The Rome Statute establishes ICC jurisdiction not only over nationals of States that are party to the Rome Statute, but also persons who commit their ICC crimes on the territory of a State Party. Is there any insult to U.S. sovereignty or our rule of law arising from a State’s delegation to an international tribunal of that State’s sovereign authority to prosecute crimes committed on its soil by Americans? I don’t think so.

Third: that the ICC blinked at the exercise of jurisdiction over war crimes that occurred outside the State where the hostilities occurred. The Court explicitly determined that its war crimes jurisdiction in connection with the U.S. conflict in Afghanistan against Al Qaeda and the Taliban does not extend to events that occurred outside Afghanistan, like the torture of suspected Al Qaida or Taliban members and others that occurred in so-called “black sites” – secret detention facilities operated by U.S. personnel – in other States that are party to the ICC treaty. This is a spectacularly wrong and dangerous conclusion, based on a false understanding of both the Rome Statute and of the broader legal context of the law of armed conflict.

As concerns the Rome Statute, the Court commits a sleight-of hand maneuver involving use of the word “or” rather than “and.” It cites, in paragraph 51, the Prosecutor’s assertion that the Court may exercise jurisdiction over war crimes only if such conduct is ‘undertaken in the context of OR associated with’ the ongoing armed conflict in Afghanistan. (Emphasis in the Court’s Decision). The Court then inaccurately claims, in paragraph 53 that the Rome Statute instead requires that the conduct must be “undertaken in the context of AND associated with the ongoing armed conflict….” (Emphasis in the Court’s Decision). The Court’s quotation of the relevant language is correct, but the source is not the Rome Statute. Rather, it is in the associated Elements of Crimes document, which is not part of the “Statute,” that such language appears. Then, the PTC claims that these events did not occur “in the context of” the relevant armed conflict, but provides no rationale for that conclusion. It simply cites the transcription error of the prosecutor who, either deliberately or accidentally, said “or” instead of “and.” The PTC then goes on to conclude, without explanation, that U.S. torture of detainees outside of Afghanistan cannot satisfy both prongs.

Oddly, the Court cites language from another ICC decision, the Ntaganda case, in which the ICC speaks approvingly of the following factors that establish the required nexus to an armed conflict: “the fact that the perpetrator is a combatant; the fact that the victim is a noncombatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.” This is odd because several, if not all, of these criteria may be present in the torture of detainees by agents of the U.S. in black sites and other detention facilities beyond the borders of Afghanistan. And there is no mention in Ntaganda of any requirement that the conduct must occur in the territory of the State of hostilities in order to meet the Elements of Crimes’ “in the context of” requirement.

The Court also couches its conclusion that there is insufficient nexus between the acts and the conflict on a gross misapplication of the laws of war. The Court invokes Common Article 3 of the Geneva Conventions, which protects detainees in armed conflicts that are not between States, e.g., U.S vs. Taliban and Al Qaeda. Common Article 3 applies “(i)n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties…”. First, it is well understood that conflicts between a State and non-State armed groups are “not of an international character,” even if they are “transnational,” since “international” means “between States.” It is also understood that “in the territory of one of the High Contracting Parties” does not exclude transnational conflicts. Rather, the term was meant by the drafters in 1949 to distinguish States that are not High Contracting Parties to the Geneva Conventions. Today, all States, including the U.S., are High Contracting Parties. The PTC’s incorrect assertion that Common Article 3 doesn’t apply to U.S. detention in, say Poland, is wrong. A similar argument made by the Bush administration to deny the application of Common Article 3 to its detainees in Guantanamo was rejected even by the U.S. Supreme Court, which recognized that the protections of Common Article 3 are so basic as to apply to all armed conflicts, everywhere. In addition, interpretations of Common Article 3 have no direct bearing on ICC jurisdiction. Had the drafters of the Rome Statute wanted to restrict war crimes jurisdiction to cases in which the acts occurred on the territory of the hostilities, they could have said so. Common Article 3 protections apply to detainees at Guantanamo and in Poland, as well as those in Afghanistan – and moving a detainee to Guantanamo or Poland does not remove those protections.

There has already been some debate about whether or not the entirety of the PTC’s Decision is subject to appeal. Kevin Jon Heller argues that since the Decision is grounded in “the interests of justice,” it may not be appealable, since that is not one of the grounds for appeal listed in Art. 82 of the Rome Statute. (BTW, Kevin does not endorse this result; I believe he considers it a flaw in the Rome Statute). This may apply to offenses committed in Afghanistan by all parties to the conflict. But what of the dismissal of offenses committed at U.S. “black sites?” To the extent they were dismissed for alleged failure to meet the “nexus to armed conflict” requirement, those dismissals may be characterized as jurisdictional, and therefore, subject to appeal.

Whether subject to appeal or not, the PTC’s Decision is arguably ultra vires and terribly misguided as a matter of law and policy. The mere appearance of a potential link between this Decision and U.S. threats against the ICC predicate to it is an “own goal” that will weigh heavily on the credibility of the ICC in the future.