Just Security’s Symposium on the ICC Afghanistan Probe and the US

Just Security is pleased to announce the launch of an online symposium dedicated to the International Criminal Court’s (ICC) probe in Afghanistan and its implications for the United States.

A pre-trial chamber of the ICC is currently considering a request from the ICC Prosecutor, Fatou Bensouda, to open an investigation into war crimes and crimes against humanity in relation to the armed conflict there.  (The Prosecutor had been conducting a preliminary examination in Afghanistan over the course of the last decade, but the request to open a full-fledged investigation, made last November, marked a key turning point.)   Experts expect the decision imminently, and are virtually certain the court will approve the request.   

A pre-trial decision to open an investigation would be highly significant for the United States, as any subsequent proceedings have the potential to ensnare U.S. officials.  Although much of the activity that is the subject of the request concerns the Taliban and Afghanistan government personnel, the request also encompasses alleged crimes committed by U.S. military personnel and CIA officials. The time period covered by the request begins on May 1, 2003, for acts in Afghanistan, but includes alleged crimes committed earlier on the territory of other States Parties to the ICC (Lithuania, Poland, and Romania) with a nexus to the armed conflict in Afghanistan beginning on July 1, 2002.  The scope of the request thus could include actions by U.S. personnel involved in “extraordinary renditions” and detention facilities referred to as “black sites” outside Afghanistan but linked to the conflict there.

A full-fledged ICC investigation in Afghanistan will therefore likely provoke a review of U.S. policy toward the court, particularly with John Bolton, a known ICC critic, soon to be at the helm of the National Security Council.  The focus of this symposium, however, is not primarily on the policy choices facing the United States, but on the array of potential legal and factual issues the United States will need to confront if the pre-trial chamber approves the investigation.  We recently discussed the substantive and procedural framework moving forward for the investigation if it is approved.  Over the coming days and weeks, we will post commentary by experts with a range of perspectives on legal and factual questions such as the ICC’s jurisdiction over non-party states, immunities, complementarity, and the evidence potentially available to the ICC prosecutor.  Our first piece by Steve Pomper will go live Thursday morning.  It sets the stage for the symposium by framing the backdrop of policy choices before the United States and then highlighting several legal strategy questions the United States may consider.

Image: John Moore/Getty 

About the Author(s)

Laura Dickinson

Former Special Counsel to the General Counsel of the Department of Defense (2016-17) and Oswald Symister Colclough Research Professor of Law at The George Washington University Law School