Can the ICC Exercise Jurisdiction over US Nationals for Crimes Committed in the Afghanistan Situation?

Abstract

On 20 November 2017, the Office of the Prosecutor of the International Criminal Court (ICC) requested authorization from Pre-Trial Chamber III to proceed with an investigation into the situation in Afghanistan. The request confirms that the Prosecutor intends to investigate, inter alia, members of the United States (US) armed forces and Central Intelligence Agency for allegedly committing war crimes and crimes against humanity in Afghanistan, Romania, Poland and Lithuania as part of the broader ‘situation in Afghanistan’. This article examines whether the status of forces agreements (SOFAs) between the US and Afghanistan has any effect on the ICC’s jurisdiction in the Afghanistan situation. It argues that the SOFA clauses that give the US exclusive criminal jurisdiction over its service members do not have any bearing on whether the ICC can lawfully exercise its jurisdiction over accused US nationals. This article concedes that Afghanistan’s obligations under the SOFAs may be in conflict with its obligations under the ICC Statute, but concludes that it is not the ICC’s responsibility to mitigate or resolve this conflict.