Under Construction Journal Issue 6.1 UNDER CONSTRUCTION JOURNAL 6.1 | Page 92

supported the idea of a permanent international criminal tribunal to try the most egregious crimes 19 but
not to the extent that it offended US sovereignty by investigating crimes on its behalf and potentially
indicting its citizens 20 . So, the fact that the Court is currently appraising the question of an investigation
into Afghanistan is fundamentally and legally misguided according to the US and the current narrative of
the incumbent US administration only appears to embolden this position 21 . So, does the US have a point?
Background
The preliminary examination was publicly announced by the ICC in 2007 into the following alleged
atrocities from the 1st May 2003:
‘the crimes against humanity of murder, and imprisonment or other severe deprivation of physical
liberty; and the war crimes of murder; cruel treatment; outrages upon personal dignity; the passing
of sentences and carrying out of executions without proper judicial authority; intentional attacks
against civilians, civilian objects and humanitarian assistance missions; and treacherously killing or
wounding an enemy combatant. The preliminary examination also focusses on the existence and
genuineness of national proceedings in relation to these crimes.’ 22
It is clear that both crimes against humanity and war crimes come within the subject-matter jurisdiction
under Article 5 of the Rome Statute and thus, the Court has jurisdiction in this respect. However, the US
contention is that it should not come within the jurisdiction of the Court by virtue of it not being a State
Party. Unfortunately, this argument does not align with the Court’s jurisdiction by virtue of Article 12 (2)
(a) of the Rome Statute which states that the ICC has jurisdiction over alleged crimes committed on the
territory of a State Party which in the current case is Afghanistan. This provision has been labelled as the
‘compromise’ between the jurisdiction over nationals and territory of States Parties. It was purpose-built
for circumstances such as these where in theory (without such a provision as Article 12 (2) (a)) non-State
19
See the 1998 Rome Statute of the International Criminal Court (Rome Statute), Article 5 for more details on the
crimes under the ICC’s jurisdiction.
20
supra n. 1, 25-34.
21
For examples, see “Donald Trump: “The ICC has no jurisdiction, no legitimacy, and no authority””, filmed 26
September 2018 at the United Nations General Assembly, video, 00:00,
https://www.youtube.com/watch?v=AjWDjVbLVb0; “US revokes ICC prosecutor’s visa over Afghanistan inquiry”,
Patrick Wintour, Owen Bowcott & Julian Borger, accessed 15 November 2019,
https://www.theguardian.com/law/2019/apr/05/us-revokes-visa-of-international-criminal-courts-top-prosecutor.
22
“Afghanistan”, ICC-cpi.int, accessed 13 November 2019, https://www.icc-cpi.int/afghanistan.
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