Assuming these acts constitute war crimes, under Article 12(2)(a) of the Rome Statute, the ICC has jurisdiction if “[t]he State on the territory of which the conduct in question occurred” has accepted the jurisdiction of the Court.8 Accordingly, as Afghanistan is a State Party to the Rome Statute, the Court has jurisdiction over the crimes committed by U.S. armed forces and the CIA through this provision. The ICC Court of Appeals also agreed with this interpretation, noting that:

As the incidents at issue all allegedly took place on the territory of a State Party to the Rome Statute, [they] fall squarely within the Court’s jurisdiction as per article 12(2)(a) of the Statute […] [and] no question relating to the Court’s territorial jurisdiction arises in this respect.9

However, the United States contests this authority. Simply put, the position of the U.S. is “a treaty does not create either obligations or rights for a third State without its consent.”10 Using this principle, the United States believes that any claim of jurisdiction by the ICC over a non-State Party is illegitimate and violates international norms, because a State cannot delegate territorial jurisdiction. However, this premise lacks foundation and dismisses decades of precedent and well-established customary international law supporting this type of jurisdiction. While the United States is correct that, under general international law, treaties do not bind non-state parties, a State cannot reject provisions of customary international law included within a treaty.11 Accordingly, despite their vehement disapproval, the delegation of jurisdiction to the ICC is in-line with customary international law and therefore legal to exercise, as discussed in further detail below.

III. Authority Allowing Jurisdiction

It must first be reiterated that there are in fact interests of two sovereign States at play here. In its issuance of unilateral sanctions, the United States fails to consider the sovereign rights of Afghanistan to freely choose how to prosecute crimes committed on their territory. It is this point of sovereignty, the sovereign rights of the signatory, which the Rome Statute looks to for consent to pursue an investigation by the Prosecutor. And should the signatory-State choose to voluntarily delegate the prosecution of these crimes to the ICC, in addition to the direct language of the Rome Statute itself in Article 12, there is substantial international law precedent that also supports this action.

A. Foundational Jurisdiction Over Non-Nationals

Firstly, contrary to the U.S.’ assumption, there is no modern principle recognized in international law that dictates States have an exclusive right to jurisdiction over acts committed by its nationals abroad. This idea was in fact a colonialist concept, whereby Western States used treaties to protect their nationals from the jurisdiction of foreign court.12 With the exception of status of forces agreements, these treaties do not exist in modern times.13 There are, however, several modern international law principles that do explicitly authorize jurisdiction to other interested States over acts committed by non-nationals of the interested State. One such international law principle is the “effects doctrine”, which dictates that a State may assert territorial jurisdiction over crimes committed by non-nationals if the crime takes place outside the state territory but produces effects within the territory of the State.14 In fact, the United States itself is a proponent for a broad interpretation of this particular doctrine and utilizes it frequently in antitrust and even drug cases.15 Another principle of international law, that of “ubiquity”, likewise allows for a state to claim jurisdiction if the crime took place in whole or in part on the territory of the State.16 A third example, the “constitutive elements principle” allows for the assertion of jurisdiction if at least one constitutive element of the crime occurred on the territory of the state.17 For each of these principles, the underlying foundation is clear: jurisdiction over crimes committed by a State’s nationals does not rest solely with that State. Moreover, each of these principles is in fact even more attenuated than the jurisdiction being presently sought by the ICC on behalf of Afghanistan in the present case. Under these principles, there is only a partial connection to the territory either through the actus reus of the crime itself, or the effect of the crime. Meanwhile, in the present case before the ICC, the actions of the U.S. armed forces and CIA took place wholly in Afghanistan, giving them traditional territoriality jurisdiction over the crimes. Collectively, these principles, which have existed for decades, disprove the U.S.’ claim that the jurisdiction being sought after is contrary to international law.

B. Customary International Law Allows for Delegation of Jurisdiction

Having established the foundation that States can prosecute crimes by non-nationals, the next refutable concern of the U.S.’ argument is that such jurisdiction cannot be delegated out from the State. As mentioned above, while a State can reject the terms of a treaty, they cannot reject principles of customary international law contained within a treaty.18 And an examination of customary international law concludes that delegating territorial jurisdiction to the ICC is permitted by principles of international law.

To start, a State’s interest in punishing war crimes or crimes against humanity that occur abroad can be just as significant as its interest in punishing internal crimes by non-nationals. This is especially true given that the core crimes under the ICC’s jurisdiction (war crimes, crimes against humanity, and genocide) are considered hostis humani generis, and therefore are considered a threat to the international community as a whole whenever they are committed.19 Under the principle of universal jurisdiction, certain crimes (such as war crimes) have been deemed so reprehensible that, when they occur on a State’s territory, the State is obligated to prosecute the individuals themselves, or extradite them to another forum.20 The ICC does not claim universal jurisdiction over the crimes outlined in the Rome Statute, as clearly evidenced by the specific requirements laid out for jurisdiction in Article 12. However, this principle does help inform the intent behind those provisions and supports the argument that delegation of jurisdiction to the ICC is allowable and intended under customary international law. Because States have not only the ability but the responsibility to prosecute these crimes under customary international law, it is not only misguided for the United States to claim the ICC is asserting improper jurisdiction over them, but it is also a violation of customary international law by refusing to assist with the prosecution of such crimes by instituting sanctions.

Moreover, there are no practical reasons to assume that territorial jurisdiction cannot be delegated to the ICC. The Lotus principle, discussed in detail in the S.S. Lotus case study below, forms the foundational basis for delegation of jurisdiction by stating that State parties do not need an express provision allowing action, but rather, it is assumed action is legal so long as there is no international law provision expressly prohibiting it.21 Substantively, no such provision presently exists. To go one step further, in his critique of the U.S.’ position on the scope of the ICC’s jurisdiction, international legal scholar Michael Scharf emphasizes that there are no special features of territoriality jurisdiction that would preclude it from being delegated to an international court based on procedural grounds.22 Functionally, there is no greater inconvenience to have an international court try a case than to have an individual State try a case of non-nationals under one of the principles mentioned above, because under both scenarios much of the witnesses and evidence would be located abroad.23 This counters any arguments of convenience of forum that would merit non-delegation of territorial jurisdiction. Relatedly, the international community has developed modes of judicial cooperation to encourage streamlining the process for all involved parties. Nothing about the nature of prosecuting territorial jurisdiction over the grave crimes covered by the Rome Statute precludes its delegation to an international criminal court. Moreover, as illustrated in the Nuremberg trials case study below, customary law allows a state to create an ad hoc international tribunal with others and to render any accused under its control to such a tribunal.24 This context sets an important foundation for the ICC to establish the terms of the Rome Statute as within the bounds of international law at the time of drafting, making it so the United States cannot refute its jurisdiction since the legality of the tribunal’s authority over non-State parties was already established through customary international law.

Lastly, international law principles enshrined in the United Nations Charter, which almost every country in the world (including the United States) has signed, support allowing the ICC to have jurisdiction of these grave crimes. First, Article 1(2) of the U.N. Charter establishes that one of the main purposes of the U.N. is to develop international relations based on respect for the “principle of equal rights and self-determination of peoples.”25 Article 2(4) further calls on Members to respect the sovereignty, territorial integrity, and political independence of other States.26 Here, by refusing to allow Afghanistan to delegate their legal jurisdiction over these crimes under international law to the ICC, the United States is refusing to respect their sovereignty, in violation of the U.N. Charter, as a nation allowed to determine how to prosecute crimes committed on their territory. Additionally, with respect to war crimes and crimes against humanity, the U.N. General Assembly declared that “States shall co-operate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity and shall take the domestic and international measures necessary for that purpose,”27 and “States shall assist each other in detecting, arresting, and bringing to trial persons suspected of having committed such crimes.”28 As a member of the U.N., the United States is reneging on its obligations to the international community as a whole by refusing to accept the ICC’s jurisdiction over the alleged war crimes committed by U.S. nationals on Afghanistan’s territory.

Each of the arguments made above are further supported by a closer look at several case studies, which again serve to root these principles in international law precedent and cement them as precedent against the U.S.’ current arguments.

IV. Case Studies

A. S.S. Lotus

The United States primarily argues that because no international principle specifically allows this level of delegation, that it is not authorized under international law norms. Not only is this premise mistaken, but it also relies on a problematic assumption: that there must be an express provision allowing an action before a State is authorized to take said action under public international law. However, precisely the opposite is true. Public international law is governed by what is expressly prohibited. To assume the former would actually limit the sovereignty of States by only allowing States to take actions that were deemed allowable by the international community, rather than actions that they saw appropriate as a sovereign nation. This principle was first articulated in the S.S. Lotus case. Turkey wanted to claim jurisdiction to try a French sailor for negligence on the high seas, which led to the death of Turkish citizens.29 France claimed that because Turkey could not “point to some title of jurisdiction recognized by international law” that the jurisdiction was illegitimate. The Permanent International Court of Justice, the predecessor to the ICJ, noted in its decision finding for Turkey that:

“Restrictions upon the independence of States cannot […] be presumed” and international law leaves to States “a wide measure of discretion which is only limited in certain cases by prohibitive rules.”30

Accordingly, they rejected France’s argument and found that the burden was on France to show that Turkey’s exercise of jurisdiction violated some prohibitive rule of international law.31 This idea, now referred to as the Lotus Principle, prescribes that a State’s course of action is allowable so long as there is not any international principle prohibiting it.32 This principle has been cited to on numerous occasions in cases since, including by the United States itself in the Nuclear Weapons case heard before the World Court.33 In their brief, the United States writes:

It is a fundamental principle of international law that restrictions on States cannot be presumed but must be found in conventional law specifically accepted by them or in customary law generally accepted by the community of nations.34

Through their own admission, the delegation of jurisdiction over the alleged war crimes from Afghanistan to the ICC cannot be limited absent a specific customary law principle to the contrary, which, as outlined above, is not present.

B. Nuremberg Trials

Long after Lotus was decided, the most notorious major case involving delegation to an international tribunal took place. Famously, after World War II, the Allied Powers collectively established the International Military Tribunal (IMT) at Nuremberg to try Germany for its crimes.35 This case sets clear precedent allowing for the delegation of jurisdiction for crimes of non-nationals. The first is that, as the IMT affirmed, in creating the Tribunal, the States simply “have done together what any one of them might have done singly, for it is not to be doubted that any nation has the right to set up special courts to administer the law.”36 In other words, these States could create such a tribunal without the consent of Germany and the tribunal could (and did) legally prosecute German nationals for their crimes. It should also be noted that, in this case, the claim to jurisdiction is again even broader and less attenuated than the jurisdiction claimed by the Rome Statute, because, in this case, none of the accused committed crimes within the territories of the accusers, nor were any of the direct victims nationals of the accusing States. It is also important to remember that at this time, due to the unconditional surrender of the German army, there existed no sovereign German state to provide consent for the trial of the major German war criminals at Nuremberg.37 So, it cannot be said that the creation of the tribunal, and the subjugation of German nationals to its jurisdiction, occurred with consent, as the United States now claims is necessary for the ICC.38 Again, this case illustrates important and time-honored precedent of delegation of war crimes to international tribunals on the basis of customary international law, supporting the ICC’s position in the Afghanistan case.

C. Myanmar Case

Finally, the ICC themselves addressed their jurisdiction over non-State parties in the recent Myanmar case. The Court started by affirming the arguments made in the earlier part of this comment: that States can assert territorial criminal jurisdiction as long as there is a link with their territory, and (based on the other theories of jurisdiction such as effects doctrine and ubiquity) they have a relatively wide margin of discretion to define the link.39 Next, the Court examines the historical context behind the creation of the ICC to determine if the drafters intended to impart a limitation on jurisdiction against non-State parties. In international law, when States delegate authority to an international organization, they transfer all powers necessary to achieve the purposes for which the authority was granted.40 If the Court could not exercise jurisdiction over cases involving non-State parties, it would preclude State parties from calling on the Court to prosecute many war crimes and other crimes that the ICC is supposed to have jurisdiction over. There is no indication, however, that the State parties to the Rome Statute intended to impose this limitation and prevent them from delegating these crimes (that they would legally have jurisdiction over themselves) to the ICC. This is supported by the fact that, in the Rome Statute, Article 15 bis (5), State parties did impose a limitation on jurisdiction with regards to the crime of aggression.41 Given that an explicit limitation on jurisdiction exists in Article 15 bis (5), but not in Article 12, it can be presumed that the drafters intended to transfer to the Court the same territorial jurisdiction they have under international law. Accordingly, the Court concluded that it may thus exercise territorial jurisdiction within the limits prescribed by customary international law, as outlined above.

V. Conclusion

The International Criminal Court is no stranger to arguments questioning its jurisdiction over non-State parties. Since its inception, it has faced sharp criticism over the merits of hearing cases involving States who have not yet signed or ratified the Rome Statute. However, an examination of customary international law and case precedent proves that, despite critiques, State-party delegation of territorial jurisdiction to the ICC is well-within the bounds of legality under international law. For this reason, the United States is misguided in its argument that this type of jurisdiction impedes on its sovereignty, and the sanctions it imposed are improper.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020), available online. ↩

2. 2.

   Id. ↩

3. 3.

   Id. ↩

4. 4.

   See, e.g., Press Release, U.S. Dept. of State, Letter from John Bolton, Under Secretary of State, to Kofi Annan, U.N. Secretary General (May 6, 2002), available online

   (announcing that the United States will not become a party to the ICC treaty and is effectively withdrawing from signatory status).

   See also John Bolton, National Security Advisor, Speech to the Federalist Society (Sep. 10, 2018), available online. ↩

5. 5.

   Situation in the Islamic Republic of Afghanistan, ICC-02/17, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Islamic Republic of Afghanistan (PTC II, Apr. 12, 2019), available online. ↩

6. 6.

   Id. ↩

7. 7.

   Id. ↩

8. 8.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 12(2)(a), available online. ↩

9. 9.

   Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4, Judgment on the appeal against the decision on the authorization of an investigation into the situation in the Islamic Republic of Afghanistan (AC, Mar. 5, 2020), available online. ↩

10. 10.

    Lee A. Casey & David B. Rivkin, Jr., The Limits of Legitimacy: The Rome Statute’s Unlawful Application to Non-State Parties, 44 Va. J. Int’l L. 63, 66 (2003), paywall. ↩

11. 11.

    Vienna Convention on the Law of Treaties, art. 34, May 23, 1969, 1155 U.N.T.S. 331, [hereinafter Vienna Convention], available online, archived. ↩

12. 12.

    See Bartram S. Brown, U.S. Objections to the Statute of the International Criminal Court: A Brief Response, 31 N.Y.U. J. Int’l L. & Pol. 855, 871 (Jan. 1999), available online. ↩

13. 13.

    Id. at 872. ↩

14. 14.

    Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ICC-01/19, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (PTC III, Nov. 14, 2019) [hereinafter ICC Myanmar Authorization], available online. ↩

15. 15.

    Jordan J. Paust et al., International Criminal Law, Cases and Materials 1270 (1st ed. 1996)

    (citing cases from the U.S. First, Second, Third, Fifth, and Ninth Circuit Courts of Appeals). ↩

16. 16.

    ICC Myanmar Authorization, supra note 14. ↩

17. 17.

    Id. ↩

18. 18.

    Vienna Convention, supra note 11. ↩

19. 19.

    Michael P. Scharf, The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position, 64 Law & Contemp. Probs. 67, 112 (2001), available online. ↩

20. 20.

    Dapo Akande, The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits, 1 J. Int’l Crim. Just. 618, 626 (Dec. 1, 2003), paywall, doi. ↩

21. 21.

    Scharf, supra note 19, at 72. ↩

22. 22.

    Id. at 113. ↩

23. 23.

    Id. ↩

24. 24.

    Id. at 117. ↩

25. 25.

    United Nations Charter, Art. 1(2), available online. ↩

26. 26.

    United Nations Charter, Art. 2(4), available online. ↩

27. 27.

    Jordan J. Paust, The Reach of ICC Jurisdiction over Non-Signatory Nationals, 33 Vand. J. Transnat’l L. 1, 4 (Jan. 2000), available online. ↩

28. 28.

    Id. ↩

29. 29.

    Scharf, supra note 19, at 72. ↩

30. 30.

    The Case of the S.S. Lotus (France v. Turkey), Judgment, 1927 PCIJ Series A, No. 10 (Sep. 7, 1927), available online. ↩

31. 31.

    Id. ↩

32. 32.

    Scharf, supra note 19, at 72. ↩

33. 33.

    Id. ↩

34. 34.

    United States Department of State, Letter to the ICJ, Written Statement of the Government of the United States of America Concerning the Request by the United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 8 (Jun. 20, 1995), available online. ↩

35. 35.

    Paust, supra note 27. ↩

36. 36.

    Id. ↩

37. 37.

    Id. ↩

38. 38.

    Scharf, supra note 19, at 116. ↩

39. 39.

    Id. ↩

40. 40.

    ICC Myanmar Authorization, supra note 14. ↩

41. 41.

    Id. ↩