Can the International Criminal Court Investigate U.S. Personnel?

Can the International Criminal Court Investigate U.S. Personnel?

Legal Sidebari
Can the International Criminal Court
Investigate U.S. Personnel?
June 30, 2020
On June 11, 2020, President Trump issued Executive Order 13928, authorizing sanctions against certain
individuals involved in the International Criminal Court (ICC) Prosecutor’s investigation of whether U.S.
military and intel igence personnel committed war crimes during the conflict in Afghanistan. The ICC is
an international tribunal created by the Rome Statute to serve as the first permanent tribunal to try
individuals for “the most serious crimes of concern to the international community as a whole.” Currently,
123 countries are parties to the Rome Statute, but the United States is not, having first signed the Rome
Statute but later withdrawing its intent to join. This Sidebar outlines the basis upon which the ICC
Prosecutor may initiate investigations; discusses the disagreement between the United States and the
Prosecutor about the legality of the request to investigate the actions of U.S. personnel; and assesses
whether the United States may attempt to stop the investigation.
Background
In November 2017, the Office of the Prosecutor for the ICC requested authorization to investigate al eged
war crimes committed by U.S. military and intel igence personnel in Afghanistan, and in countries linked
to the conflict. The Prosecutor had been preliminarily examining the events in Afghanistan since 2006.
The request stated that the Prosecutor’s information from its preliminary examination provided “a
reasonable basis to believe that” U.S. military personnel in Afghanistan subjected “at least 54 detained
persons . . . to torture, cruel treatment, outrages upon personal dignity, rape and/or sexual violence.”
Further, the request indicated that the information also “provided a reasonable basis to believe” that U.S.
intel igence personnel subjected “at least 24” individuals to similar treatment during interrogations in
secret detention facilities (so-cal ed “black sites”) in Afghanistan, Poland, Lithuania, and Romania.
In April 2019, the ICC’s Pre-Trial Chamber denied the Prosecutor’s request, finding that although the ICC
had jurisdiction, the likelihood of a successful prosecution was “extremely limited” given that nearly
eleven years had elapsed since the Prosecutor began examining the situation and the limited cooperation
with and resources available for a full investigation and prosecution. In March 2020, the ICC’s Appeals
Chamber reversed this determination, deciding that the Pre-Trial Chamber should not conduct an
“interests of justice” inquiry at the preinvestigation stage and should assess “only whether there is a
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reasonable factual basis for the Prosecutor to proceed with an investigation.” The Appeals Chamber then
authorized the Prosecutor to conduct a full investigation.
Following this authorization, on June 11, 2020, the President issued Executive Order 13928. The order
permits relevant U.S. federal agencies to sanction individuals and entities involved with or assisting the
investigation of U.S. personnel actions during the conflict in Afghanistan. These sanctions may affect the
personal property of such individuals or entities and lead to suspension of U.S. entry visas. The
immigration-related sanction expands on the State Department’s March 2019 policy “of U.S. visa
restrictions on those individuals directly responsible for any ICC investigation of U.S. personnel, ” which
was used to revoke the ICC Prosecutor’s U.S. visa. For more information about the contents of the
executive order, see this CRS Insight.
Legal Basis for Investigations
The Office of the Prosecutor for the ICC may open an investigation in three circumstances. First, the
Prosecutor may begin an investigation if the United Nations (U.N.) Security Council refers a matter to the
Prosecutor in accordance with Chapter VII of the U.N. Charter. Chapter VII of the charter permits the
Security Council to take actions to address acts of aggression or threats to the international peace, as with
the situations in Darfur, Sudan and Libya. Second, any signatory to the Rome Statute may refer a matter
to the Prosecutor, as with the situation in Venezuela. Third, the Prosecutor may seek to open a preliminary
investigation on her own initiative, as with Afghanistan. In this third case, however, the Prosecutor must
obtain approval for an investigation from the ICC’s Pre-Trial Chamber, the ICC division that handles the
judicial aspects of a case before trial (e.g., issuing arrest warrants, deciding whether there is sufficiency of
evidence to go to trial).
In al of these circumstances, an investigation may proceed only if the Prosecutor determines that the
conduct qualifies as one of “the most serious crimes of concern to the international community as a
whole,” which the Rome Statute identifies as (1) genocide; (2) crimes against humanity; (3) war crimes;
and (4) the crime of aggression.
Additional y, the Prosecutor must possess a reasonable factual basis for concluding that ICC will have
jurisdiction over the individuals al eged to have committed crimes listed in the Rome Statute. The ICC
may obtain jurisdiction over individuals in several ways. The most straightforward case is when a country
ratifies the Rome Statute, thereby consenting to ICC jurisdiction over the country’s nationals and acts
occurring in that country’s territory. The ICC may also assert jurisdiction over individuals of a country
not party to the Rome Statute in limited circumstances. First, a nonparty country may agree to ICC
jurisdiction for a specific inquiry or crime (i.e., on a case-by-case basis). Second, in some cases, the ICC
may assert jurisdiction over individuals of a country not a party to the Rome Statute if the conduct
occurred in the territory of a country or was carried out by a national of a country that is a party or has
otherwise consented to ICC jurisdiction.
Even if the ICC has jurisdiction, the court may ultimately find an investigation inadmissible (i.e., the ICC
may not hear and adjudicate a case) for several other reasons. First, the ICC may not conduct a trial if the
al eged conduct has been “investigated or prosecuted by a State which has jurisdiction over it.” This does
not apply, however, if (1) the country was “unwil ing or unable to genuinely” carry out these functions or
(2) a decision not to prosecute “resulted from the unwil ingness or inability of the State genuinely to
prosecute.” Additional y, an investigation may not proceed if the person whose conduct is at issue has
been tried in another court or if the case is not of “sufficient gravity to justify further action.”

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Is the Investigation of U.S. Personnel Legal?
The United States and ICC Prosecutor disagree as to whether the request to investigate the actions of U.S.
personnel during the Afghanistan conflict is legal under the Rome Statute. First, the United States
maintains that any investigation is il egal because the United States is not a party to the Rome Statute and
has not consented to the ICC’s jurisdiction. By contrast, the Prosecutor has argued that the Office may
open an investigation because Afghanistan, and the three other countries where certain crimes al egedly
took place, are al parties to the Rome Statute, and the conduct at issue occurred within their territories.
Thus, the Prosecutor contends, the conduct fal s into one of the limited circumstances when the ICC may
exercise jurisdiction over individuals who are nationals of a nonparty. Assuming that the Prosecutor
eventual y identifies any U.S. individual as a suspect during the investigation and seeks to arrest or
summon such individual, that person could seek to chal enge the ICC’s jurisdiction.
Second, the United States argues that the United States investigated the conduct at issue, thus precluding
the Prosecutor from a separate investigation. The Prosecutor disagrees, contending that the United States’
investigations did not cover “those who appear most responsible for the crimes al egedly committed.” The
Appeals Chamber held that the Prosecutor need not present definitive findings on this issue when seeking
authorization for an investigation. This may suggest that if the Prosecutor concludes there is sufficient
evidence to prosecute any U.S. personnel, an individual may reassert the argument that the case is
inadmissible because of the prior U.S. investigation.
Can the United States Stop an Investigation?
It is unclear whether the United States can eventual y stop the ICC Prosecutor’s investigation. As
discussed above, two legal questions remain open for further argument as the investigation continues:
(1) whether the ICC may assert jurisdiction over U.S. personnel and (2) whether a prosecution is
ultimately inadmissible due to prior U.S. investigations. While these questions remain undecided, the
Prosecutor’s investigation may continue. In the context of this legal uncertainty, the executive order
authorizing sanctions against individuals involved in the investigation and the 2019 visa restriction policy
may be viewed as a way to deter the investigation.
Assuming that the United States cannot halt an investigation, it may seek to prevent arrests or
prosecutions of U.S. personnel through several means. First, the United States and Afghanistan signed an
agreement in 2002 prohibiting the transfer of U.S. personnel to the ICC without the United States’
consent. This agreement, one of many the United States has entered into with various countries, reflects
the U.S. position that Article 98 of the Rome Statute permits such mutual arrangements (known as
“Article 98 Agreements”) to avoid ICC custody. Article 98 prohibits the ICC from requiring a country to
surrender an individual if doing so would be inconsistent with that country’s obligations under an
international agreement. However, the U.S. interpretation diverges from that of some other countries,
which take a narrower view of Article 98. In particular, some nations contend that Article 98 applies only
to agreements predating the Rome Statute that might conflict with ICC jurisdiction and to a limited set of
new agreements, such as Status of Forces Agreements (SOFAs). SOFAs set out, among other things, when
a country’s forces are subject to the domestic laws of the country in which they are stationed. Whether the
ICC would recognize the U.S.-Afghanistan arrangement is unclear, as it has never ruled on the validity of
these arrangements. If the ICC upholds the U.S. interpretation and validity of the bilateral agreement, then
U.S. personnel in Afghanistan (or in any other country with which the United States has a similar bilateral
agreement) could avoid prosecution. If the ICC rejects the U.S. interpretation, the ICC could conclude
that Afghanistan is obligated to surrender U.S. personnel. Whether Afghanistan does so, or the United
States attempts to prevent this, may ultimately turn on political rather than legal considerations.

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The United States may also seek to rely on Article 98 in a different way. Specifical y, it may invoke a set
of SOFAs between the United States, the International Security Assistance Force (ISAF), the North
Atlantic Treaty Organization, and Afghanistan to prevent prosecutions. These SOFAs apply to different
periods of the conflict in Afghanistan and cover different groups of personnel. Thus, which, if any, SOFA
might apply to any named U.S. individual is uncertain. For instance, the ISAF-Afghanistan SOFA applies
to U.S. military personnel who are part of ISAF, the U.N.-authorized mission in Afghanistan, but not
those who were part of the U.S. coalition forces operating under a separate command structure and
potential y not to U.S. intel igence personnel.
The United States may also attempt to rely on domestic law to hinder ICC prosecutions. U.S. law
permits the President to “use al means necessary and appropriate to bring about the release of”
U.S. military personnel and others working on behalf of the U.S. Government, among others,
that the ICC detains. Domestic law also prohibits the use of federal funds to extradite U.S.
citizens to other countries that must surrender these U.S. citizens to the ICC, unless those
countries guarantee they wil not surrender any U.S. citizen to the court. While these mechanisms
may not legal y prevent prosecution, if applied, they may render it impractical to pursue.

Author Information

Nina M. Hart

Legislative Attorney

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