Just Security is pleased to launch this online symposium–spearheaded by Professor Laura Dickinson–which is focused on the International Criminal Court’s (ICC) probe in Afghanistan and its implications for the United States.

It is clear that an individual’s official status as, say, the head of state or government of a State Party to the Rome Statute does not provide immunity from prosecution for the most serious international crimes before the International Criminal Court (ICC). Indeed, Article 27 of the Statute specifically provides for the irrelevance of official capacity with respect to criminal responsibility for acts within the Court’s jurisdiction. However, whether that provision applies to the most senior officials of States that are not a party to the Statute, or to their lower level officials, is a different question, one that has proven controversial and has important implications for a potential ICC investigation of war crimes committed in Afghanistan.

Irrelevance of Official Capacity

Article 27 (“Irrelevance of official capacity”) of the Rome Statute provides:

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Despite the seeming clarity of this language, the difficulties the ICC has encountered in its efforts to prosecute President Al-Bahir of Sudan (which is not a party to the Rome Statute) for crimes against humanity, war crimes and genocide in Darfur demonstrate that applying this “no official immunity” provision is not as straightforward as one might expect. The likelihood that the ICC will soon approve a formal investigation into the situation in Afghanistan, opening the possibility that charges might eventually be brought against U.S. officials who served in much less senior positions, raises even more questions.

Potential ICC Probe in Afghanistan

As Laura Dickinson and Alex Whiting noted in their March 26 article, the ICC’s Prosecutor sought authorization last November from Pre-Trial Chamber III (PTC) to open an investigation into the situation in Afghanistan, including whether members of the U.S. armed forces and the CIA may have committed violations of Article 8 of the Rome Statute (in particular, torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence) on the territory of Afghanistan (and perhaps in other State Parties to the Statute as well). A decision by PTC II (to which the matter was recently transferred) under Article 15(4) is expected shortly.

Assuming the PTC approves and opens an investigation, it will take considerable time before any charges might actually be brought (if any are brought at all), and resolving particular immunity issues would of course depend on what specific allegations are made against which individuals. But since, like Sudan, the United States is not a party to the Rome Statute, the broader question can be asked even now whether (and to what extent) Article 27 would apply in the event that the investigation does result in criminal charges against U.S. officials.

Immunity (or Lack Thereof) for Non-Party Officials

As the Al-Bashir saga suggests, these are not simple questions. Despite the issuance of ICC arrest warrants in 2009 and 2010, Al-Bashir has yet to be detained by any State Party to the Rome Statute. As a consequence, the ICC has found a number of State Parties (including Chad, Malawi, the Democratic Republic of the Congo, South Africa and Jordan) in breach of their treaty obligations. (Jordan has appealed that decision and just a few days ago, the Appeals Chamber invited member States to submit their observations on the matter.)

In addition, courts in South Africa (including the South African High Court and the South African Supreme Court of Appeal) and Kenya have ruled that their respective governments violated their obligations under the Rome Statute by failing to arrest Al-Bashir during his visits to those countries. The African Union recently agreed to ask the UN General Assembly to request an advisory opinion from the International Court of Justice on the issue of immunities for high level officials.

Like Sudan, the United States is not a party to the Rome Statute and never agreed to be bound by Article 27. The relevant contention, therefore, is that the removal of immunity provision cannot operate with respect to U.S. officials. By its terms, Article 27 can only apply to individuals who are within the ICC’s jurisdiction; it cannot supply jurisdiction merely by precluding an assertion of immunity. This presents the substantial question of whether Article 27 can be properly interpreted and applied to the Head of State or Government (much less other officials) of a non-Party to the Rome Statute, even in a proceeding otherwise within the Court’s jurisdiction.

In its July 6, 2017 decision regarding Al-Bashir, PTC II answered that question in the affirmative, in effect determining that the UN Security Council’s (UNSC) referral of the situation in Darfur to the ICC under its Chapter VII authority had implicitly stripped Al-Bashir of his Head-of-State immunity. Commentators have offered different views on that conclusion, with some, such as Gabriel Lentner, contending that immunities can only be removed by explicit UNSC decision, and others, such as Dapo Akande, André de Hoogh and Abel Knotterus, and Paola Gaeta[and including the Pre-Trial Chamber], arguing that imposing an obligation on Sudan to “cooperate fully” was its functional equivalent. However, since the investigation into the situation in Afghanistan does not stem from UNSC referral but rather was begun by the Prosecutor proprio motu, that debate is inapposite.

Afghanistan is a party to the Rome Statute, of course, so the ICC has jurisdiction over acts committed on its territory that violate the relevant Articles. Yet (the argument goes) Afghanistan’s adherence to the Statute could not confer jurisdiction (or derivatively remove any immunities) with respect to potential U.S. defendants for their actions in Afghanistan because it had no such jurisdiction to confer. Under Article 13(1) of the 2014 Bilateral Security Agreement (BSA), the United States expressly retained the “exclusive right to exercise jurisdiction in respect of any criminal or civil offenses committed on the territory of Afghanistan” by members of the U.S. military forces and its civilian component. In other words, immunity from Afghan jurisdiction deprives the ICC of any jurisdiction based on Afghan’s status as a State Party to the Statute.

Moreover, pursuant to its Article 98 agreement with the United States (done Sept. 20, 2002) as well as Article 13(5) of the BSA, Afghanistan agreed that members of the U.S. military force and its civilian component could not be surrendered or otherwise transferred to the custody of the ICC or any other international tribunal without express U.S. consent.

Those particular commitments presumably would be inapplicable to officials not serving in Afghanistan or to allegations related to actions outside that country (but the question then would be how the ICC could have jurisdiction over such individuals or actions).

What About Lower Ranking and Former Officials?

Moreover, the Al-Bashir brouhaha involves “Head of State/Head of Government” immunity (ratione personae), which encompasses only the most senior officials. The ICC has not to date had occasion to address the immunities of lower-ranking officials (ratione materiae). The immunities of those in the latter category from domestic prosecutions have, of course, been the subject of recent debate (and sharp disagreement) within the International Law Commission (ILC) in the context of considering the limitations and exceptions to the immunity as a matter of customary international law.

At its August 2017 session, the ILC provisionally adopted (by a sharply divided vote) the text of draft Article 7 (“crimes under international law in respect of which immunity ratione materiae shall not apply”). That text occasioned considerable debate in the Sixth Committee during the 72nd United Nations General Assembly. According to the ILC’s report, members of the Commission disagreed whether it was in fact possible to identify an emergent trend towards adopting limitations and exceptions to immunity of State officials ratione materiae from foreign criminal jurisdiction. There was also debate over the proposed inclusion of crimes of apartheid, aggression and corruption. [unsure what your protocol is on referring to other journals/blogs, but it would perhaps be helpful to the readers, and indicative of JS’s currentness, to recognize here that AJIL Unbound has a recent, relevant symposium on this debate found here.

As provisionally adopted, Article 7(1) states that “[i]mmunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crime of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance.”

The ILC was of course not speaking to the ICC’s jurisdiction or immunities under Article 27 of the Rome Statute. And the Court has to date not interpreted in any detail the scope of “official capacity” either as that term is used with respect to the criminal responsibility of “a governmental official” in Article 27(1) or regarding immunities of “a person” from jurisdiction in Article 27(2).

Finally, the summary of the Prosecutor’s November 2017 request to the PTC clearly suggests that the focus of the investigation (with respect to U.S. individuals) is on events which occurred during 2003-04, not only in Afghanistan but also other countries, so that questions of immunity of former officials might be involved. Whether the events in question fall within the ICC’s substantive jurisdiction will probably be an additional issue.

In short, the journey down this path will likely be long and contentious.

Photo by Andrew Renneisen/Getty Images