It is no secret that the Trump administration, in general, and Secretary of State Mike Pompeo, specifically, are hostile toward the International Criminal Court (ICC), particularly as it relates to the ICC’s investigation into potential U.S. abuses in Afghanistan since 2003. The Obama administration also resisted the Court’s veering toward this investigation. Yet the Trump administration, with Pompeo taking the lead, has made it personal by targeting specific members of the Court, and the Secretary of State has recently said he will escalate actions against the Court to prevent it from pursuing the criminal investigation. What has gone generally unnoticed is that Pompeo may be personally at risk for wrongdoing that the Court could uncover of CIA activities when he was the director of the agency.
Last year, the Trump administration placed restrictions on visas for travel to the United States for ICC employees. In March, Pompeo threatened two named ICC employees with punitive sanctions in remarks to the press in his official capacity as Secretary of State (see Just Security coverage here and here). Then, on Monday, Pompeo stated, in an interview with the American Enterprise Institute podcast, “What The Hell Is Going On,” that the public would soon see “a series of announcements from not just the State Department, [but] from all across the United States government that attempt to push back against what the ICC is up to.”
With this announcement, it 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. As the report indicates, “Even where no US forces take part in the operation, the US military often provides logistical and tactical support to these CIA-backed operations, including planning, delivering the forces to the location via helicopters, and providing air support.” 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.”
These reported abuses raise questions about the ICC’s Afghanistan investigation, which the Court’s Office of the Prosecutor (OTP) has been looking into since before 2007 and officially investigating since March.
Following a decade-long “preliminary examination” of the Afghanistan situation, the OTP requested to move forward with an official investigation in November 2017. (Because the OTP brought the case under its own initiative, it must obtain permission from the Court to transition from the preliminary examination to investigation phases). While the Court’s Pre-Trial Chamber initially denied the OTP’s request, the ICC Appeals Chamber overturned this decision on March 5, 2020, and authorized the opening of an investigation “in relation to alleged crimes committed on the territory of Afghanistan in the period since May 2003” (for an explanation of this decision and its likely implications, see here).
For the most part, the ICC Office of the Prosecutor has focused, with respect to alleged crimes committed by U.S. forces and members of the CIA, on the period of the George W. Bush administration—from 2002 to 2008, with a particular emphasis on the 2003-2004 period. However, the Prosecutor has outlined various alleged crimes, committed by Taliban and affiliated armed groups, after this timeframe.
What’s more, not only did the Appeals Chamber leave the investigation’s timeframe open-ended, but it explicitly overruled the Pre-Trial Chamber’s holding, which limited the Prosecutor to solely investigating — and seeking indictments for — incidents specifically mentioned in the Prosecutor’s initial filing requesting authorization to investigate along with incidents “closely linked” thereto. In pertinent part, the Appeals Chamber held (at para. 62):
In relation to the Afghanistan situation, the Appeals Chamber notes that the Prosecutor presented information regarding the alleged large scale commission of multiple crimes against humanity and war crimes by various armed groups and actors involved in the conflict, which began prior to the entry into force of the Rome Statute on 17 July 2002 and continues to the present day. This information was accepted by the Pre-Trial Chamber as providing a reasonable basis to believe that the alleged events occurred and that they may constitute crimes within the jurisdiction of the Court. Given the scope of the information presented by the Prosecutor and accepted by the Pre-Trial Chamber, the Appeals Chamber considers that the requirements [necessary for the Pre-Trial Chamber to authorize the commencement of an investigation] would be met by granting the authorisation in the terms requested by the Prosecutor, which sufficiently defines the parameters of the situation. (emphasis added)
In short, the “parameters” of the situation the Prosecutor was authorized to investigate explicitly encompass all crimes occurring on the territory of Afghanistan — and a handful of other states involved in the U.S. extraordinary rendition of individuals from Afghanistan — under the jurisdiction of the ICC from 2002 onwards. More recent incidents may also be easier in some respects for the Prosecutor to investigate for several reasons, including the availability and memories of witnesses.
Having served as CIA director from January 2017 until April 2018 and as Secretary of State thereafter, Pompeo could potentially be personally culpable, under Articles 25 and 28 of the ICC’s Rome Statute, for some or all of the alleged CIA participation in potential war crimes and crimes against humanity described in the HRW report. The modes of liability through which Pompeo could be found culpable include, but are not limited to, ordering, soliciting, or inducing others to commit the crime, or exercising command or superior responsibility over perpetrators of such crimes.
This is not to suggest that there are any strong indicators pointing toward Pompeo’s personal culpability for international crimes occurring in Afghanistan in recent years, or that Prosecutor Fatou Bensouda and the OTP have any interest in further complicating the already monumental task they face in trying to obtain evidence, secure suspects, and conduct trials. Nor do the ICC prosecutors need to investigate or indict Pompeo for its work to implicate him personally. If the Court pursues potential crimes committed by the CIA under his leadership, that alone could be damaging.
It is hard to envision any scenario wherein Pompeo would actually face an indictment, let alone be extradited to The Hague, but the OTP has been explicitly handed the authority to investigate U.S. misconduct in Afghanistan in which Pompeo may be implicated. Bensouda has the power to investigate the CIA, including its senior leadership, and to make the investigation’s findings public. This is an important element of the landscape to keep in mind when the U.S. government “push[es] back” against the ICC as Pompeo promised.