International Criminal Court: U.S. Sanctions in Response to Investigation of War Crimes in Afghanistan

INSIGHTi

International Criminal Court: U.S. Sanctions
in Response to Investigation of War Crimes in
Afghanistan
June 19, 2020
President Trump issued an executive order on June 11, 2020, authorizing sanctions, in part, against any
foreign person found to be acting in support of the International Criminal Court (ICC) Prosecutor’s
investigation of U.S. personnel. The decision comes three months after the ICC Prosecutor’s opening of
an investigation into alleged war crimes related to the Afghanistan conflict, which has provoked
condemnation and concern from the United States.
Executive Order Authorizing U.S. Sanctions
In Executive Order 13928, President Trump declared that the ICC’s assertion of jurisdiction over U.S.
military, intelligence, and other personnel in the course of investigating actions allegedly committed by
those personnel in or relating to Afghanistan “constitutes an unusual and extraordinary threat to the
national security and foreign policy of the United States.” Invoking authorities provided in the National
Emergencies Act and the International Emergency Economic Powers Act, the President declared that the
ICC activities establish grounds for a national emergency to deal with the threat.
To implement the order, the Secretary of State, in consultation with the Secretary of the Treasury and the
Attorney General, is tasked with identifying any “foreign person” that
 has directly engaged in the ICC’s efforts “to investigate, arrest, detain, or prosecute any
United States personnel without the consent of the United States,” or similarly engaged in
such activities targeting personnel of a U.S. ally without consent of that person’s
government;
 has “materially assisted, sponsored, or provided financial, material, or technological
support for, or goods or services to or in support of,” any ICC efforts described above; or
 is “owned or controlled by, or [has] acted or purported to act for or on behalf of, directly
or indirectly, any person whose property and interests in property are blocked pursuant to
this order.”
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Any person identified as having engaged in any of these activities can be subject to having property and
interests in property blocked if that property is under U.S. jurisdiction. In addition, the Secretary of State,
in consultation with the Secretary of Homeland Security, is authorized to deny entry into the United States
of any designee under the “inadmissible aliens” provision of immigration law (8 U.S.C. 1182(f)).
As of the date of this Insight, no designations have been made.
ICC-Related Action Concerning the Situation in Afghanistan
The ICC Office of the Prosecutor (OTP) announced in 2007 that it had received evidence of war crimes
and crimes against humanity related to the conflict in Afghanistan, a state party to the Rome Statute that
established the ICC, and that the OTP was conducting a preliminary examination of the situation. In
November 2017, Prosecutor Bensouda requested permission from the ICC Pre-Trial Chamber to initiate a
formal investigation of possible crimes committed by the Taliban, Afghan security forces, and U.S.
personnel in Afghanistan since May 2003 and related crimes committed in other ICC member states since
July 2002. In the request, the OTP stated that there was a “reasonable basis” to believe that U.S. armed
forces and Central Intelligence Agency (CIA) personnel had committed “[w]ar crimes of torture, outrages
upon personal dignity and rape and other forms of sexual violence” on the territory of Afghanistan or in
“secret detention facilities” in ICC member states Poland, Lithuania, and Romania, “primarily in the
period 2003-2004.”
The United States has asserted that it has completed criminal investigations into all U.S. personnel alleged
to have committed such crimes, and therefore the ICC cannot exercise jurisdiction over these allegations,
pursuant to the principle of complementarity (Article 17 of the Rome Statute), which prevents the ICC
from prosecuting individuals when a national judicial system has already effectively done so. The
findings of the ICC Prosecutor, however, asserted that no U.S. investigations “examined the criminal
responsibility of those who developed, authorised or bore oversight responsibility for” the alleged actions
amounting to war crimes, and therefore complementarity would not bar the ICC’s investigation.
On April 12, 2019, the Pre-Trial Chamber denied the ICC Prosecutor’s request to open an investigation
into the situation in Afghanistan, stating that the passage of time, political changes in Afghanistan, and a
lack of cooperation from relevant governments made the otherwise valid investigation unlikely to “serve
the interests of justice.” On March 5, 2020, however, the ICC Appeals Chamber reversed and amended
the Pre-Trial Chamber’s decision, finding that the Pre-Trial Chamber erred in rejecting the ICC
Prosecutor’s interests of justice determination, and authorizing the ICC Prosecutor to open a formal
investigation. It is possible the investigation could result in individual criminal charges.
U.S.-ICC Relationship and Administration Policy
The United States helped draft the Rome Statute but is not party to the treaty due to sovereignty concerns
and possible exposure of U.S. personnel to prosecution. Congress enacted legislation in 2002 to protect
U.S. personnel from ICC actions, prohibiting U.S. cooperation with the ICC, and authorizing the
President to free U.S. personnel detained by or on behalf of the ICC. U.S. law nonetheless permits the
federal government to assist ICC efforts on a case-by-case basis, and the United States has supported the
ICC’s activities in some cases.
Trump Administration officials have signaled increasing opposition to ICC actions, including the
Afghanistan investigation and the ICC’s acceptance of jurisdiction over the state of Palestine earlier this
year. In addition to sanctions, the Trump Administration has restricted ICC personnel travelling in the
United States and has threatened possible prosecution of ICC officials.

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Congressional Involvement in U.S.-ICC Relations
Congress has expressed both support for and opposition to the activities of the ICC, and it has placed
restrictions on ICC accession. Congress has the means under the National Emergencies Act and
International Emergency Economic Powers Act to terminate the national emergency, which
would in turn revoke the authority to impose sanctions outlined in E.O. 13928. The NEA, at
Section 202 (50 U.S.C. 1622), lays out the requirements and procedure to advance a joint
resolution to terminate the declaration; Section 207 of IEEPA (50 U.S.C. 1706) reinforces the
NEA procedure. On the other hand, Congress may choose to support the Administration’s
decision to seek policy changes in the ICC through sanctions; Congress could take no action.
Wherever Congress lands on the policy debate, the ICC’s activities are once again in the
spotlight and could attract attention in the form of oversight and an assessment of current law to
determine whether it appropriately protects U.S. foreign policy interests, ensures due process for U.S.
personnel, and promotes accountability for atrocities.

Author Information

Matthew C. Weed
Dianne E. Rennack
Specialist in Foreign Policy Legislation
Specialist in Foreign Policy Legislation





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