As a permanent member of the UN Security Council and the most militarily powerful nation in the world, the US has largely been able to evade international justice, even when engaging in conduct for which other nations have been held accountable. To date, the vast majority of international criminal courts and tribunals have instead prosecuted defendants from developing states who lack the resources or authority to resist international criminal law.

Yet, the International Criminal Court (ICC) may recently have changed the inegalitarian landscape of international criminal law. In a decision rendered on March 5, 2020, the ICC Appeals Chambers authorized an investigation into alleged crimes committed in Afghanistan since May 2003. The decision also authorized an investigation into related crimes committed in the territory of other ICC States Parties that are “sufficiently linked” to the conflict in Afghanistan. The Appeals Chamber expressly decided that the scope of the investigation includes crimes committed by US military and CIA personnel against detainees held in facilities both in Afghanistan and in black sites in other nations. Such an investigation could potentially implicate current high-ranking US government officials.

This decision follows a protracted and contentious battle between the US and the ICC. In 2018, upon learning of the ICC’s intent to consider an investigation into Afghanistan, the Trump administration fired back with public denouncements of the court’s legitimacy and a revocation of US travel visas for court officials, including the ICC Prosecutor, Fatou Bensouda. Shortly thereafter, the ICC Pre-Trial Chamber rejected Prosecutor Bensouda’s request to open the investigation, which many labeled a highly politicized move that reflected the ICC’s willingness to bend to US political pressures. The White House, on the other hand, recognized the Pre-Trial Chamber’s decision as a “victory … for the rule of law.”

The Appeals Chamber’s March decision reversing and amending the Pre-Trial Chamber’s order, while of extreme significance, has two very different sets of consequences. On one hand, this is the first time the Court has opened an official investigation into a permanent member of the UN Security Council, evidencing a potential shift away from exclusively investigating crimes committed in and by nationals of developing states, thereby broadening the effective scope of international criminal law. On the other hand, this decision reignites the ICC’s conflict with the US, the effects of which may be devastating to the Court.

First, the decision marks an enormous milestone in the ICC’s development of a more equal approach to international justice. The decision comes following a multi-year legitimacy crisis afflicting the Court, in which the ICC has been widely criticized for its hyper-focus on prosecuting defendants from African states while permitting western powers to escape prosecution entirely. The Appeals Chamber’s decision directly refutes criticisms that the ICC bends to political pressures, and instead takes a stand against the bullying conduct directed at the Court by the US government. This decision sends a clear message that no matter how powerful a state’s government or military may be if that state’s leaders permit their nationals to engage in conduct that amounts to war crimes or crimes against humanity, they will be held responsible.

Yet, on the other hand, these achievements come with potentially ominous consequences. The US government has made clear that it will not permit the investigation to proceed without a fight. In a press conference held shortly after the announcement of the ICC decision, Secretary of State Mike Pompeo labeled the decision a “political vendetta” rendered “by an unaccountable legal institution.” He further promised that the US would “take all appropriate actions to ensure that American citizens are not hauled” before the ICC. Pompeo’s statement is far from an empty threat. In 2002, under President Bush, Congress enacted The American Service-Members’ Protection Act, 22 U.S.C.A. § 7427, colloquially dubbed “The Hague Invasion Act,” which legally forbids governmental cooperation with the ICC and authorizes the US president to use “all means necessary and appropriate” to bring about the release of any American detained by the Court.

Even absent the use of force against the ICC, the US has the resources and will to undermine the Court’s investigation into alleged American crimes. Not only has it proven that it can prevent ICC personnel from entering the country, but the US government will almost certainly decline to turn over documentary evidence and refuse ICC access to witness. As has been proven time and again, as with crimes committed in Cambodia, Syria, and Sudan, international criminal law holds a slim chance of providing justice without state support. When a state refuses to turn over its nationals for prosecution or repeatedly seeks to block prosecutorial investigations into alleged crimes, cases are routinely rendered infeasible. Moreover, there is also the chance that the US could pressure its allies-some of which, like Canada and the United Kingdom, are States Parties to the Rome Statute-to withdraw from the Court.

As of now, the full consequences of the ICC Appeal Chamber’s decision to open an investigation into Afghanistan have yet to be seen. The decision may lead the US to undermine the Court’s legitimacy and deprive it of the opportunity to conduct successful prosecutions. Yet, for the time being, the decision marks a clear win for a court that has been very much in need of one.

Sara L. Ochs is an international criminal law scholar and teaching fellow at Elon University School of Law.

Suggested citation: Sara L. Ochs, Leveling the Playing Field or Razing it?: The ICC’s Investigation into Afghanistan, JURIST – Academic Commentary, March 12, 2020, https://www.jurist.org/commentary/2020/03/sara-ochs-ICC-Investigation-Afghanistan/

This article was prepared for publication by Tim Zubizarreta, JURIST’s Social Media Director. Please direct any questions or comments to him at commentary@jurist.org