The Biden administration will be rolling back a considerable amount of Trump administration executive and regulatory action. The rolling back cannot all be done at once. It cannot all be done quickly.
But the Biden administration needs to rescind Donald Trump's executive order 13928, of June 2020, which imposes financial sanctions and travel restrictions on officials at the International Criminal Court.
As it stands now, the United States is imposing sanctions on Fatou Bensouda, chief prosecutor of the International Criminal Court, as if she were a terrorist, an international trafficker of narcotics, or a proliferator of weapons of mass destruction.
It should be high priority, I think, to fix that situation.
I'll go over the history of the current ICC full investigation into Afghanistan, which includes investigation of torture at the CIA black sites.
Then I’ll quote from some opinion and analysis on the ICC investigation, including how the Biden administration might respond to the investigation, beyond rescinding the Trump executive order..
That the ICC is currently investigating the US for war crime should certainly be seen as a striking and important event, I think.
Some 40 prisoners are still being held at Guantanamo Bay, however, including at least 12 known to have been subjected to severe torture by the US. They have been “detained” there for than 20 years now, with no real legal process to challenge their imprisonment, but they are no longer even much remembered.
History of the ICC Investigation into Afghanistan
In 2007, the International Criminal Court announced a preliminary examination of war crimes and crimes against humanity in Afghanistan. The preliminary examination was then held open, with little action, for a decade.
In 2017, chief prosecutor Bensouda requested authorization to conduct a full investigation of the conflict in Afghanistan, specifically listing:
- The Taliban and affiliated groups, for crimes against humanity and war crimes;
- The national security forces of Afghanistan, for war crimes; and
- The armed forces and Central Intelligence Agency of the United States, for war crimes.
The ICC has jurisdiction over US actions on Afghan soil, because jurisdiction is by either nationality or territory of parties to the Rome Convention, and Afghanistan has been a party since 2003.
The ICC also specifically noted that its jurisdiction extends to US actions at CIA black sites. Rome Statute parties that were CIA black site locations include Djibouti, Jordan, Lithuania, Poland, and Romania.
I think it is important to call attention to the fact that the investigation includes the Taleban, and that the investigation of Taleban actions is specifically stated to include crimes against humanity. Here is the Afghanistan Analysts Network on the matter:
According to information received by the [Office of the Prosecutor] thus far, over 17,000 civilian deaths between January 2007 and December 2015 could be attributed to anti-government armed groups such as the Taleban. The report also highlights attacks by the Taleban against schools, hospitals, mosques and humanitarian organisations (which are “protected objects” under international law). In the case of criminal conduct by US forces and Afghan government forces, grave abuses against conflict-related detainees appear to be the main focus.
Two years after the request for a full investigation, in 2019, the pretrial chamber rejected the request. The chamber found sufficient evidence of war crimes and crimes against humanity, but said that the chance of successful prosecution was extremely limited, and thus the interests of justice would not be served by proceeding.
In March 2020, the ICC appeal chamber reversed the decision, and authorized an investigation.
In April, the government of Afghanistan replied that it has investigated some 150 cases of alleged war crime: by the Taleban; by government of Afghanistan and international forces; by the Islamic State in Khorasan Province; and cases of torture at Afghan government national security prisons. The sufficiency of the Afghan government’s investigations can be strongly questioned. It is also, though, the closest to a real response to the ICC, of any of the parties.
In June, the Trump administration responded to the ICC decision to investigate, with the executive order prohibiting ICC investigators from entry into the US, and imposing financial sanctions.
The United States already has the so-called Hague Invasion Act of 2002. The act says that the US president can use all means necessary to free US persons from detention or imprisonment by the ICC. It prohibits US officials from cooperating with ICC investigations of US persons.
But Trump’s action, with John Bolton as his national security adviser, is even more belligerent and hostile to the ICC than the Invasion Act. It seized any US assets of chief prosecutor Fatou Bensouda, by name. And it imposed travel restrictions on the families of ICC officials, beyond the officials themselves.
Opinion and Analysis
Here is some discussion of issues around the ICC investigation concerning Afghanistan. The first two quotes discuss the Biden administrations potential response.
“Biden Likely to Lift Sanctions on ICC Chief Prosecutor”, by Colum Lynch, at Foreign Policy:
President-elect Joe Biden is facing increasing pressure from foreign allies, international justice advocates, and some of his own advisors to lift U.S. sanctions on Fatou Bensouda, the Gambian lawyer who leads the International Criminal Court, and a chief ICC aide.
Once he’s inaugurated, Biden has vowed to take a number of steps—including rejoining the Paris climate accord and reversing the current administration’s decision to withdraw from the World Health Organization—aimed at assuring key allies that the new American leader is committed to multilateralism and cooperating on a range of vexing global challenges. He has largely remained silent on his plans for the international tribunal, but sources familiar with the deliberations say that Biden is likely to lift sanctions on the court’s personnel early in his term.
“U.S.-ICC Relations Under a Biden Administration: Room to Be Bold”, by Christopher “Kip” Hale, at Just Security:
[T]he first pillar of [Biden’s] policy should be an overarching policy of support for the ICC and its mandate to confront atrocities with the rule of law. The second pillar should be a commitment to approach and articulate disagreements with the ICC in strict accordance with the rule of law (such as by making use of Article 18 of the Rome Statute, which provides avenues for a State to challenge or appeal decisions of the OTP and to communicate on complementarity) not in direct contravention of it.
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A rule of law approach towards the ICC also necessitates a repudiation of the previous administration’s policy. Sanctioning lawyers, judges, and courts simply for doing their jobs is, by definition, antithetical to the rule of law. Imposing measures on their families is even more reprehensible. Regardless of how much some in a Biden Pentagon, CIA, or elsewhere may want to reserve all options, the U.S. cannot stand for the rule of law while peddling in practices that destabilize it.
Moreover, U.S. domestic law and long-standing foreign policy deplore such punitive tactics. Domestically, it is a crime in the United States to intimidate or exact revenge on lawyers, prosecutors, and/or judges. Internationally, the U.S. gives millions in grants each year to help human rights defenders (including lawyers and judges) around the globe who face retaliation for doing their jobs, retaliation which often comes in the form of governments using the coercive power of the state (such as financial measures and vexatious charges) to force lawyers and judges to relent.
The Int’l Criminal Court Executive Order: Global Reactions Compiled, by Beth Van Shaack, at Just Security.
Although Pompeo regularly invokes the imperative of “protecting U.S. troops” from the Court, as ret. General Wesley Clark made clear, the ICC Prosecutor has indicated that she is not focusing on battlefield conduct but rather custodial abuses in 2003-4 at the height of the U.S. torture program. This involved a network of Central Intelligence Agency black sites in European states (perhaps operating without their knowledge or consent), the torture of detainees, and other abusive conduct. Indeed, as several commentators note, the most serious allegations against the United States implicate the CIA rather than the Pentagon (as confirmed by the Senate Select Intelligence Committee’s report on the CIA’s Detention and Interrogation Program). Although U.S. military forces are also implicated in these allegations, it is disingenuous to suggest that U.S. opposition is all about protecting men and women in uniform deployed to the battlefield or that service members are now at particular risk of arrest when they are not.
“Afghan Victims of War Crimes Want Investigation: Hundreds of thousands apply to ICC”, by Ehsan Qaane, at Afghanistan Analysts Network:
Based on information so far released by the ICC [Feb 2018], the Court has received 345 representations on behalf of more than seven hundred thousand victims. These representations are important as they will factor in to the ICC’s assessment about whether prosecuting war crimes and crimes against humanity that have been committed in Afghanistan over the past 15 years is in the interests of justice.
“A Chance for the US to Change its Tune on Justice,” by Shannon Maree Torrens, at the Interpreter:
To investigate effectively, Bensouda and her team of investigators and lawyers require access to the US and Afghanistan to gather evidence, and they need to be able to do that work without fear of reprisal. The US, however, seems to be doing everything possible to make sure that the ICC is obstructed in its operations, likely hoping eventually to frustrate the investigation.
It is therefore becoming apparent that the US is supportive of international prosecutions only as long as its own citizens will not be held accountable.
The US can’t have it both ways. It either supports international justice, as it should, or it doesn’t. To both support and criticise international justice invites accusations of hypocrisy and a lack of sincerity in US foreign policy. This is particularly so when the US, as a permanent member the UN Security Council, refers situations of potential international crimes in other states to the ICC – as it did in the case of Libya – but then vocally decries the Court’s intervention in its own affairs.
Whether intentional or not, the United States also sent a clear message about who should bear responsibility. The September 2 designations have targeted the two African and non-White-passing individuals among the five public-facing officials in the ICC’s Office of the Prosecutor. In spite of potential connections to the Afghanistan investigation by virtue of their positions, the United States did not designate Deputy Prosecutor James Stewart, Director of the Investigations Division Michel de Smedt, or Director of the Prosecutions Division Fabricio Guariglia. It designated Bensouda and Mochochoko.
“Pompeo’s Personal Stake in the International Criminal Court’s Afghan Investigation”, by Haley S. Anderson and Randle DeFalco, at Just Security:
[I]t is important to understand the personal stake Pompeo may have in hindering the ICC’s ongoing activities.
Human Rights Watch (HRW) has reported that, from late 2017 to mid-2019, “CIA-backed Afghan strike forces committed serious abuses, some amounting to war crimes.” The report described U.S. involvement in extrajudicial killings by CIA-backed forces in the course of kill-or-capture operations, counterterrorism operations, and airstrikes accompanying night raids. It also detailed assaults, arbitrary detentions, and summary executions during night raids by Afghan forces, often accompanied by U.S. forces. ... HRW Senior Researcher Patricia Grossman also outlined these allegations for Just Security in 2019.
That civilian casualties increased in the period from 2017 to 2019, according to HRW, is not necessarily surprising. As their report notes, senior Trump administration officials told the New York Times in October 2017 that “the C.I.A. is expanding its covert operations in Afghanistan, sending small teams of highly experienced officers and contractors alongside Afghan forces to hunt and kill Taliban militants across the country.” Ten days before the Times story was published, then-CIA Director Pompeo announced that, “with the President’s backing, we’re taking several steps to make CIA faster and more aggressive.”
The argument [US argument that the ICC lacks jurisdiction] essentially boils down to the contrarian view that U.S. forces and intelligence personnel can commit atrocity crimes inside any of the 123 states parties of the Rome Statute (including all but one NATO ally, every country of the European Union, all of South America, and much of Africa, East Asia, Central America, and the Caribbean) without accountability before the ICC. This view is especially precarious because the United States does not contest that those States’ national courts could prosecute U.S. defendants for such atrocity crimes, only that they can’t provide jurisdiction to an international court to handle such cases.
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I used to make this theoretical international law argument, grounded in the Vienna Convention on the Law of Treaties, on behalf of the U.S. Government many years ago. Today it holds very little credibility because of the character of the crimes at issue, the evolution of international criminal law, and the longstanding principle of criminal jurisdiction over one’s own territory.