The Conflict of Jurisdiction Between the Sending State of Foreign Military Presence and the International Criminal Court: Taking the Situation in Afghanistan as an Example
In March 2020, the Appeal Chamber of the International Criminal Court formally authorized the Office of Prosecutor to investigate the situation in Afghanistan, and the most concern of the situation was the international crimes committed by the US military in Afghanistan. The International Criminal Court has been subject to disputes over the exercise of jurisdiction over non-parties in the United States, and in accordance with customary international law, military personnel enjoy Immunity Ratione Materiae in foreign courts, and in the case of Afghanistan, there is exclusive criminal jurisdiction granted to the United States by the US-Afghanistan bilateral Status of Forces Agreement, So that the jurisdiction of the United States and the International Criminal Court may conflict. Although military personnel’s criminal immunity may be able to adjust to the jurisdiction of the International Criminal Court, when exclusive criminal jurisdiction based on bilateral treaties conflicts with the jurisdiction of an international court based on a multilateral convention, the Rome Statute, the International Criminal Court need to rely on treaty interpretation and treaty conflicts to solve the issue of jurisdiction.
The Conflict of Jurisdiction Between the Sending State of Foreign Military Presence and the International Criminal Court: Taking the Situation in Afghanistan as an Example, Humanities and Social Sciences.
Vol. 8, No. 5,
2020, pp. 154-162.
ICC Pre-Trial Chamber II, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, 12 April 2019.
The White House, National Security & Defense: “Protecting American Constitutionalism and Sovereignty from the International Criminal Court”, 10 September 2018 accessed 30 May 2019.
ICC Office of the Prosecutor, Report on Preliminary Examination Activities 2014, 2 December 2014, para. 94.
ICC: “The Prosecutor of the International Criminal Court, Fatou Bensouda, requests judicial authorisation to commence an investigation into the Situation in the Islamic Republic of Afghanistan” accessed 11 July 2020.
See SEC. 2008. 22 U. S. C. 7427 of American Service members’ Protection Act Of 2002 < https://legcounsel.house.gov/Comps/aspa02.pdf >accessed 30 July 2020.
Hao, Jia. (2011). On U. S. Policy Toward the International Criminal Court. American Studies Quarterly, 25 (4), 45. (in Chinese)
William A. Schabas, An introduction to the International Criminal Court, 4th ed., Cambridge: Cambridge University Press, 2011, p. 30. doi: 10.1017/CBO9780511975035
R. Chuck Mason, “Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized?”, CRS Report for Congress, 15 March 2012 accessed 29 May 2020.
See the judgment of 14 February 2002 in Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, I. C. J. Reports 2002, para. 51.
UN Doc. A/CN.4/661, para. 53.
UN Doc. A/CN.4/686, para. 17.
Mario Luiz Lozano case, Corte Suprema di Cassazione, Sala Penale (Italy), judgement of 24 July 2008.
Border Guards case, Federal Criminal Court of Germany, decision of 3 November 1992 (case No. 5 StR 370/92).
United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997).
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I. C. J. Reports 2002, p25.
Sarah Williams, Hybrid and Internationalised Criminal Tribunals – Selected Jurisdictional Issues, Oxford: Hart Publishing, 2012, pp. 58-133. doi: 10.5040/9781472565938
Ramona Pedretti, Immunity of heads of state and state officials for international crimes, Leiden: Martinus Nijhoff Publishers, 2014, pp. 57-98. doi: 10.1163/9789004287778
UN Doc. A/CN.4/701, para. 189.
Israel, Attorney-General of the Government of Israel v. Eichmann, Judgment of the Supreme Court, English translation available in available in International Law Reports, vol. 36 (1968), p. 277.
Netherlands, Bouterse, Judgment of the Supreme Court of 18 September 2001.
Spain, Guatemala Genocide, Menchú Tumm and Others v. Two Guatemalan Government Officials and Six Members of the Guatemalan Military, Judgment of the Constitutional Court of 26 September 2005.
Spain, Scilingo Manzorro (Alolfo Francisco) v. Spain, Judgment of the Supreme Court of 1 October 2007.
United Kingdom, R v. Bartle and the Commissioner of Police for the Police and Others, Ex Parte Pinochet, Judgment of the House of Lords of 24 March 1999, reproduced in International Legal Materials, vol. 38 (1999).
See Military Technical Agreement Between the International Security Assistance Force and the Interim Administration of Afghanistan accessed 30 May 2019.
Agreement regarding the Status of United States Military and Civilian Personnel of the U. S. Department of Defense Present in Afghanistan in connection with Cooperative Efforts in Response to Terrorism, Humanitarian and Civic Assistance, military training and exercises, and other activities. Exchange of notes 26 September and 12 December 2002 and 28 May 2003. Entered into force 28 May 2003.
See “Security and Defense Cooperation Agreement between the United States and the Islamic Republic of Afghanistan” accessed 30 May 2020.
Bassiouni, M. (2001). Universal jurisdiction for international crimes: Historical perspectives and contemporary practice. Virginia Journal of International Law, 42 (1), 81.
See Article 49 of the First Geneva Convention “for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field”; Article 50 of the Second Geneva Convention “for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea”; Article 129 of the Third Geneva Convention “relative to the Treatment of Prisoners of War”; Article 146 of the Fourth Geneva Convention “relative to the Protection of Civilian Persons in Time of War”.
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I. C. J. Reports 2006, p. 6.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment, I. C. J. Reports 2015, p. 3.
Bryan A. Garner and Henry C. Black, Black's law dictionary, 7th ed., Saint Paul, MN: West Group, 1999, p. 701.
Yearbook of the International Law Commission 2006, Volume II (Part Two), Chapter XII, p178.
ICTY Appeals Chamber, Prosecutor v. Dušan Tadić, No. IT-94-1-T, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 11.
Kreb, C. (1998). Penalties, enforcement and cooperation in the international criminal court statute (parts vii, ix, x). European Journal of Crime, Criminal Law and Criminal Justice, 6 (4), 450.
Waite and Kennedy v. Germany case, 26083/94, ECHR, February 1999.
Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11-466-Red, Decision on the Admissibility of the Case against Abdullah Al-Senussi, Pre-Trial Chamber I, 11 October 2013, paras 227–229.
Prosecutor v. Anto Furundzˇija, IT-95-17/1-A, Judgement, Appeals Chamber, 21 July 2000, para 189.
See “Mugabe Slams “Blind” International Criminal Court” (23rd September 2011) The Zimbabwe Mail accessed 10th July 2020.