Last week, the prosecutor for the International Criminal Court
(ICC) stated that investigations into alleged war crimes and crimes
against humanity in Afghanistan may result in the prosecution of
U.S. policymakers or servicemen. The potential prosecution of U.S.
persons by the court over incidents that the U.S. deems lawful is
one of the prime reasons why the Bush Administration did not seek
U.S. ratification of the treaty creating the court, rejected ICC
claims of authority over U.S. persons, and sought to negotiate
agreements with countries to protect U.S. persons from being
arrested and turned over to the ICC.
The investigation is not complete, the prosecutor has not
determined if he will seek warrants against U.S. officials or
servicemen, and Afghanistan is constrained from turning over U.S.
persons to the ICC under existing agreements. However, the
potential legal confrontation justifies past U.S. policy,
emphasizes the need to maintain and expand legal protections for
U.S. persons against ICC claims of jurisdiction, and should lead
the Obama Administration to endorse the Bush Administration's
policies toward the ICC.
U.S. Policy toward the ICC
The U.S. initially was an eager participant in the effort to
create the ICC in the 1990s. However, America's support waned
because many of its concerns about the proposed court were ignored
or opposed. Among other concerns, the U.S. concluded that the ICC
lacked prudent safeguards against political manipulation, possessed
sweeping authority without accountability to the U.N. Security
Council, and violated national sovereignty by claiming jurisdiction
over the nationals and military personnel of non-party states in
In the end, U.S. efforts to amend the Rome Statute were
rejected. President Bill Clinton urged President George W. Bush not
to submit the treaty to the Senate for advice and consent necessary
for ratification. After additional efforts to address key U.S.
concerns failed, President Bush felt it necessary to "un-sign" the
Rome Statute and take additional steps to protect U.S. nationals,
officials, and service members from the ICC, including passing the
American Service-Members' Protection Act of 2002, which restricts
U.S. interaction with the ICC and its state parties, and seeking
Article 98 agreements to preclude nations from surrendering,
extraditing, or transferring U.S. persons to the ICC or third
countries for that purpose without U.S. consent.
The Afghan Investigation
On September 10, the Prosecutor for the International Criminal
Court, Argentinean Luis Moreno Ocampo, announced that ICC
investigators had begun looking into allegations of war crimes and
crimes against humanity, including torture, "massive attacks," and
collateral damage resulting from military action in Afghanistan.
The allegations were made by human-rights groups and the Afghan
government. According to Béatrice Le Fraper du Hellen, a
special adviser to Ocampo, the ICC has been "collecting data about
allegations made against the various parties to the conflict" since
Since Afghanistan acceded to the Rome Statute--the treaty
establishing the ICC-- on February 10, 2003, the prosecutor is
empowered to receive and investigate crimes alleged to have
occurred in Afghanistan after the establishment of the court in
Although the investigation will also look into crimes allegedly
committed by the Taliban, Ocampo confirmed that North Atlantic
Treaty Organization troops participating in the United Nations
mandated International Security Assistance Force (ISAF) mission to
bolster the Afghan government could become a target of ICC
prosecution. A decision to prosecute ISAF forces for actions in
Afghanistan would almost certainly involve American servicemen
which, as of July 23, 2009, constituted nearly half of all foreign
troops involved in the mission (29,950 out of 64,500) and
represent one of the few countries willing to fully engage in
military action to confront Taliban forces.
The ICC investigation is at an early stage. According to du
Hellen, "[I]t's particularly complex. It's taking time to gather
information on crimes allegedly committed on the government side,
on the Taliban side and by foreign forces."  In the end, the ICC
may find no evidence to proceed with a warrant against
anyone--American or otherwise.
Status of Forces Agreement
The ICC can act only if a country is unwilling or unable to
pursue the alleged crimes. However, in a situation like
Afghanistan, it is very likely that the ICC would have to assert
jurisdiction because the government of Afghanistan has extremely
limited legal jurisdiction over U.S. officials and service members.
Specifically, the U.S. and the Afghan government entered into a
Status of Forces Agreement (SOFA) regarding military and civilian
personnel in Afghanistan engaged in "cooperative efforts in
response to terrorism, humanitarian and civic assistance, military
training and exercises, and other activities." Under the SOFA,
U.S. personnel are immune from criminal prosecution by Afghan
authorities, and are immune from civil and administrative
jurisdiction except with respect to acts performed outside the
course of their duties. [The agreement] explicitly authorized the
U.S. government to exercise criminal jurisdiction over U.S.
personnel, and the Government of Afghanistan is not
permitted to surrender U.S. personnel to the custody of another
State, international tribunal [including the ICC], or any other
entity without consent of the U.S. government.
Although the SOFA was signed by the interim government, it
remains binding on the current government and the Afghan government
could not try U.S. officials or service members for acts committed
during the "course of their duties," even if it wanted to.
Thus, the ICC would undoubtedly find the Afghan government
unable to pursue the alleged crimes. Such a finding would raise
another issue. Under the Article 98 agreement with Afghanistan, the
government has agreed not to turn over U.S. persons to the ICC or
to allow a third party to do so without U.S. permission--an
unlikely development, given that a U.S. official has stated that
the United States has no reason to believe that U.S. persons have
committed crimes in the conduct of their official duties under ISAF
that have not been properly investigated and adjudicated.
These safeguards are not a guarantee of protection from the
illegitimate claims of ICC jurisdiction, but U.S. officials and
service members are much more protected than they would be without
them. Most likely, an ICC warrant would be executed against a U.S.
person in Afghanistan only if that person traveled to an ICC state
party that does not have an Article 98 agreement with the U.S. The
current scenario, therefore, only underscores the urgency of
negotiating more such agreements.
Reject the Rome Statute
The Obama Administration is reportedly close to announcing a
change in U.S. policy toward the ICC, including affirming President
Clinton's 2000 signature on the Rome Statute and increasing U.S.
cooperation with the court. Weakening protections against ICC
prosecution of U.S. officials and service members would be a grave
mistake, as illustrated by the ongoing investigation in
The ICC's Afghan investigation is a testament to the wisdom of
the Bush Administration. To protect its officials and servicemen,
the U.S. should continue to insist that it is not bound by the Rome
Statute and does not recognize the ICC's authority over U.S.
persons, maintain and expand legal protections like Article 98
agreements, and exercise great care when deciding to support the
Schaefer is Jay Kingham Fellow in International Regulatory
Affairs and Steven Groves is Bernard and Barbara Lomas
Fellow in the Margaret Thatcher Center for Freedom, a division of
the Kathryn and Shelby Cullom Davis Institute for International
Studies, at The Heritage Foundation.