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Judges Orders Extradition of Ex-Nazi Camp Guard from Tennessee to Germany

March 25, 2020 by Alexandra Haris 1 Comment

On Wednesday, March 5, the Department of Justice (DOJ) announced that a U.S. immigration judge in Memphis ordered a Tennessee man’s extradition to Germany.

The man, Friedrich Karl Berger, 94, is a German citizen and served as an armed guard at a concentration camp in Nazi Germany during World War II. According to the DOJ, Judge Rebecca L. Holt made the ruling after “a two-day trial ‘on the basis of his service in Nazi Germany in 1945 as an armed guard of concentration camp prisoners in the Neuengamme Concentration Camp system.

In response to Judge Holt’s decision, Berger told The Washington Post, “After 75 years, this is ridiculous. I cannot believe it. You’re forcing me out of my home.” It is not immediately clear if Berger intends to appeal his decision, which would be a move that could delay his deportation for several years. Berger has been living in the U.S. since 1959.

Berger participated as a guard at one of the Neuengamme system’s sub-camps in Germany, known as Meppen. As a guard, he admitted to preventing prisoners from escaping during the workday and during their trips to and from work sites. In anticipation of the British and Canadian forces’ arrival to liberate the camps in 1945, Berger helped guard the prisoners during their “forcible evacuation,” a two week trip the killed around 70 prisoners due to inhumane conditions.

It is important to note that Berger said he was forced to work in World War II and he never carried a weapon. However, records reflect he never requested a transfer from concentration camp guard services. Additionally, he still receives a pension from Germany due to his employment and “wartime service.”

Judge Holt issued her opinion “finding Berger removeable under the 1978 Holtzman Amendment to the Immigration and Nationality Act.” This was because he committed a “willing service” as an armed guard of inmates at a concentration camp where Nazi-sponsored persecution took place.

The DOJ wrote: “Berger was part of the SS machinery of oppression that kept concentration camp prisoners in atrocious conditions of confinement,” said Assistant Attorney General Brian A. Benczkowski of the Department of Justice’s Criminal Division. “This ruling shows the Department’s continued commitment to obtaining a measure of justice, however late, for the victims of wartime Nazi persecution.”

The investigation was initiated by the DOJ’s Human Rights and Special Prosecution Section and completed with help from the U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations Human Rights Violators and War Crimes Center.

David C. Shaw, the supervisor of war crime cases of ICE, said in a statement, “The United States will not serve as a safe haven for human rights violators and war criminals. We will continue to pursue these types of cases so that justice may be served.”

A note about Neuengamme…

The Neuengamme Concentration Camp System was a system in which around 100,000 people were imprisoned between 1938 and 1945. According to the Neuengamme Concentration Camp Memorial, at least 42,900 were killed here.

The Neuengamme prisoners were compiled of “Jews, Poles, Russians, Danes, Dutch, Latvians, French, Italians, and political opponents [of the Nazis].” The imprisoned experienced “atrocious” conditions during the winter of 1944-1945 and faced exploitation for labor that forced victims to work from dawn until dusk each day, which often led to exhausted and death.

Global Fragility Act Aims to Stabilize Conflict Zones and Prevent Wars

February 21, 2020 by Bruce Zagaris Leave a Comment

On December 19, 2019, the United States Congress adopted the historic bipartisan Global Fragility Act (GFA), establishing the first-ever U.S. government strategy to tackle alarming levels of global violence around the world. The violence is causing unimaginable suffering and instability with almost 70 million people around the world trying to flee the violence.

The Act requires the administration to develop a strategy to prevent violence in fragile states. By creating a process to identify the causes of conflict and reallocating resources to respond to them, the GFA will help prevent violence more effectively and reduce its enormous cost on families and communities.

The GFA directs the State Department to start the Interagency Global Fragility Initiative to stabilize conflict-affected areas and prevent violence globally. It creates funds to support these efforts.

The State Department must prepare a plan for the initiative, including its organizational structure and goals. The State Department must lead in development, humanitarian, and non-security policies. Other departments and agencies, including the Department of Defense, will provide support as required.

The State Department must select priority countries and regions that are especially at risk, and report to Congress 10-year plans for each. The plan must include information, including descriptions of goals, plans for achieving such goals, and benchmarks for measuring progress.

The State Department must report to Congress every two years concerning the initiative’s progress. The Government Accountability Office must consult Congress every two years about opportunities to assess the initiative and recommend improvements.

The Act establishes the Stabilization and Prevention Fund (SPF) to support efforts to stabilize conflict-affected areas, including areas at risk from the Islamic State of Iraq and Syria or other terrorist organizations. The Act authorizes $200 million annually over five years for the SPF.

The Act creates the Complex Crises Fund (CCF) to support programs to address emerging, unforeseen, or complex challenges abroad. The Act authorizes $30 million annually over five years for a CCF.

The current issue of the IELR will have a more comprehensive discussion of the GFA.

The American Society of International Law is holding a panel on the Act on Tuesday, February 25, 2020 from 6:00 -8:00 at the ASIL Headquarters, Tillar House (2223 Massachusetts Ave, N.W.). Registration if free and open to the public. For more information and registration, go to www.asil.org/events.

DISTINGUISHED PROFESSOR OF INTERNATIONAL CRIMINAL LAW PASSES AWAY

December 18, 2019 by Bruce Zagaris 1 Comment

On December 9, 2019, Distinguished University and Law Professor Emeritus at the Washington College of Law, American University Nicholas Kittrie passed away. Below is a memorandum from Mary L. Clark, Deputy Provost and Dean of Faculty.

For those of us who had the privilege of knowing Professor Kittrie, he was a great scholar, a fantastic teacher, a very kind human being, and had a love of the field of international criminal and comparative criminal law. The community of international and comparative criminal law will miss him dearly.

“TO: American University Faculty and Staff

FROM: Mary L. Clark, Deputy Provost and Dean of Faculty

SUBJECT: WCL Distinguished University and Law Emeritus Nicholas Kittrie

I write with the sad news of the passing of Distinguished University and Law Professor Emeritus Nicholas Kittrie. Professor Kittrie earned an LL.B. and M.A. from the University of Kansas and an LL.M. and S.J.D. from Georgetown University School of Law. Professor Kittrie joined AU’s Washington College of Law in 1964 and served on the faculty for over 50 years before his retirement in 2017. While at WCL, Professor Kittrie rose through the academic ranks quickly and ultimately served as WCL’s Dean. He also played a major role in the planning and development of the then Criminal Justice Department in the School of Public Affairs. In recognition of his service, WCL’s Faculty Lounge – “The Nicholas N. Kittrie Faculty Lounge” – was dedicated in his honor in 2016.

Professor Kittrie was a leading expert in American and international public and criminal law. He authored or edited more than fifteen books, numerous articles, and gave scores of presentations at universities throughout North America, Europe, Asia, and Africa. Professor Kittrie frequently appeared in the media to discuss topics as varied as war crimes, terrorist activities, political offenders, extradition, and criminal sentencing. Professor Kittrie chaired the United Nations Alliance of NGOS on Crime Prevention and Criminal Justice, served as president of the American Society on Criminology, and served as a legal consultant to the United States Vice President’s Commission on Terrorism. Most recently, Professor Kittrie was honored with the Albert Nelson Marquis Lifetime Achievement Award in recognition of his work as a legal scholar, educator, and legal practitioner in the U.S. and abroad.

Information regarding a service in honor of Professor Kittrie will follow. Condolences or acknowledgments on his behalf may be made to the American Friends of Yemin Orde Youth Village in Bethesda, M.D.”

Former Somali Commander Found Liable for Torture Under The Torture Victim Protection Act

May 23, 2019 by Alex Psilakis Leave a Comment

In April 2019, the IELR Blog reported on the federal civil case against Colonel Yusuf Abdi Ali, the commander of the Somali National Army under the Said Barre military dictatorship. Somali Farhan Warfaa brought the case against Abdi Ali (known as “Tukeh”) under the Torture Victim Protection Act. Warfaa alleged that Tukeh tortured and interrogated him, then shot him five times at point-blank range, leaving him for dead. Warfaa also argued that Tukeh targeted he – and his village – because of their ethnic status as members of the Issaq clan. Tukeh did not only target Issaq villagers, but even soldiers within his own army, dismissing his troops that belonged to the ethnic group and sending them to the city of Hargeisa, where they faced their likely execution. Some estimates claim that as many as 200,000 people were massacred under the Said Barre dictatorship, but that number is impossible to prove, and may be higher.

On May 21, a federal civil grand jury in Northern Virginia found Tukeh liable for the torture of Warfaa, though not for the attempted extrajudicial killing. As a result, the jury has ordered Tukeh to pay Warfaa $400,000 in compensatory damages and $100,000 in punitive damages. Those that testified during the trial included Warfaa and a number of relatives, alongside an additional torture victim and two former soldiers that served under Tukeh.

Kathy Roberts of the Center for Justice and Accountability, who served as Warfaa’s attorney, praised the decision. “We’re thrilled that the jury came back and found that our client had in fact been tortured,” she said. “It’s a good verdict; it stands for the principle that no one above the law. Our client is very happy.”

Tukeh’s attorney, Joseph Peter Drennen, criticized the decision. “Yusuf Abdi Ali was held liable because he was a commander in an army that served under a regime that had a poor human rights record,” he stated. “But aside from the plaintiff’s testimony, there was virtually no evidence that Ali tortured anyone.”

In recent weeks, the scrutiny against Tukeh has extended outside the courtroom. On May 15, CNN reported that Tukeh has worked as an Uber driver for the past year and a half, and previously worked as a Lyft driver as well. CNN reporters went undercover to speak to Tukeh, who they learned had a nearly perfect rating of 4.89 out of 5 with Uber, making him an “Uber Pro Diamond” driver. Tukeh claimed that he had no trouble passing Uber’s background check. Checkr, a separate company, typically performs Uber’s background checks, investigating outlets including national sex offender databases, as well as federal and local court records and databases. Since he has never faced criminal charges in the U.S., he passed such checks without issue. Uber has strengthened their background check policy in the last year, and banned Tukeh from driving with the service.

These events echo those of 2016, when CNN reported that Tukeh – known as an alleged war criminal – was working as a security official at Dulles International Airport, located just outside Washington, DC. He was fired soon after the story broke. The fact that he served as security official, even though he was publically known as an alleged war criminal, is stunning.

However, for Warfaa, and the Center for Justice and Accountability (CJA) more broadly, this ruling is a great victory. Warfaa has spent the past 15 years seeking to hold Tukeh accountable, arguing in court after court for his case to be heard. Though a previous federal court ruling prevented Warfaa from suing Tukeh under the U.S. Alien Tort Statute, he continued to seek remedy under the Torture Victim Protection Act. On May 21, he finally earned that remedy. To the CJA, meanwhile, this decision represents their third success in recent years. Alongside Warfaa, the CJA has filed suit and won damages for victims from General Mohammad Ali Samantar, a former Somali Prime Minister, as well as Col. Abdi Aden Magan, the former Chief of the Somali National Secret Service.

While Tukeh may appeal the decision, the case – as it currently stands – is complete. Nevertheless, its impact will carry on, as this ruling, alongside CJA’s other victories, showcase how the U.S. is far from a safe haven for alleged war criminals. Laws like the Torture Victim Protection Act serve as effective outlets for victims to find justice when it eludes them elsewhere. This case also shows the important work of non-governmental organizations, such as CJA, that focus on victims of torture and help them prosecute cases.

Current Case Against Former Somali Commander and Current Virginia Resident Showcases the Reach of the Torture Victim Protection Act

April 23, 2019 by Alex Psilakis 2 Comments

On May 13, 2019, Colonel Yusuf Abdi Ali, former commander of the Somali National Army, will stand trial for his alleged involvement in the torture and attempted extrajudicial killing of Farhan Warfaa. Col. Ali, referred to as Tukeh, served under Somalia’s Said Barre regime, which ruled through a military dictatorship from 1969-1991. However, after the regime was overthrown, Col. Tukeh moved to Canada, and then the U.S., where he retained permanent residency status since 1996.

Mr. Warfaa alleges that Col. Tukeh captured him just before civil war broke out. Col. Tukeh rounded up Mr. Warfaa, alongside the other men and boys in the village, and transferred them to the Military Headquarters of the 5^th Brigade of the Somali National Army, where Col. Tukeh served as the commanding officer. Mr. Warfaa claims that Col. Tukeh tortured and interrogated him, eventually shooting him five times at point-blank range, assuming him dead. Somehow, though, he survived, and Col. Tukeh’s soldiers later released him in exchange for payment from Mr. Warfaa’s family. He further alleges that Col. Tukeh targeted him and his village because of their ethnic status, being members of the Isaaq clan. Col. Tukeh allegedly disarmed Isaaq soldiers under his leadership, sending them to Hargeisa to face massacre alongside their own. As many as 200,000 individuals were executed in Hargeisa under the Said Barre regime, though with a near-countless number of bodies in mass graves, no one knows exactly how many people were killed.

While Col. Tukeh will face trial on May 13, the path to this trial has been long and laborious. Mr. Warfaa first brought claims against Col. Tukeh in 2004, suing him under the U.S. Alien Tort Statute and the Torture Victim Protection Act. Due to multiple delays and stays, the case did not go to court until 2014, when the District Court for the Eastern District of Virginia dismissed Mr. Warfaa’s claims regarding the Alien Tort Statute. However, the court also dismissed Col. Tukeh’s claim that he deserved immunity as a foreign official. In 2016, the Fourth Circuit Court of Appeals upheld the lower court’s ruling, allowing Mr. Warfaa to move forward in suing Col. Tukeh under the Torture Victims Protection Act. In 2017, the Supreme Court refused a request for judicial review of the decision, eliminating a final technical hurdle to Mr. Warfaa’s lawsuit.

While the dismissal of the Alien Tort Statute means that Mr. Warfaa cannot sue Col. Tukeh for war crimes and crimes against humanity, the Torture Victim Protection Act allows him to seek justice for the alleged torture and attempted extrajudicial killing he experienced. Passed in 1991, the Torture Victim Protection Act allows victims of torture or extrajudicial killings to pursue civil actions against their alleged perpetrators. Victims – or, in the cases of extrajudicial killings, legal representatives or claimants – may file a lawsuit against those that act under actual or apparent authority of any foreign nation. However, before seeking remedies in the U.S., victims must exhaust “adequate and available remedies” where the alleged crime occurred.

Mr. Warfaa’s legal representation, the Center for Justice and Accountability (CJA), has experience in carrying out suits against abusers of the Said Barre regime. After CJA filed suit against General Mohammad Ali Samantar, Samantar was deemed liable for human rights atrocities. As a result, he had to pay $21 million to Somali survivors represented by CJA. In 2013, CJA also won a judgement Col. Abdi Aden Magan, the former chief of the Somali National Security Service. CJA represented Abukar Hassan Ahmed, a law professor and human rights advocate, who experienced physical and emotional trauma at the hands of Col. Magan. Professor Ahmed won $15 million in damages from Col. Magan.

No sum of money can adequately make up for the damages that victims of torture and extrajudicial killings experience at the hands of ruthless officials. However, policies like the Torture Victim Protection Act at least offer a remedy in which victims may hold accountable those that cause them so much suffering. Though Mr. Warfaa will never be able to forget the pain he alleges he experienced at the hands of Col. Tukeh, his victory in court would provide him the opportunity to label Col. Tukeh the criminal that he has always seen him as.

Questions Emerge Regarding the Legality of European Arms Sales, But Sales Continue

April 20, 2019 by Evan Schleicher Leave a Comment

This week French armed forces minister Florence Parly publicly stated that French weapons have not been used against civilians in Yemen after leaked intelligence published by investigative website Disclose showed that French arms, including tanks and laser-guided missile systems sold to Saudi Arabia and the United Arab Emirates, were believed to have been used in the Yemeni war against civilians. Prior to the release of this report, originally dated September 25, 2018, the French Government had maintained that French arms sold to Saudi Arabia were being used purely for defensive purposes along the border. This information raises new questions about whether the French have been selling the Saudi coalition weapons in contravention of international law.

Human Rights Watch has contended that they have been, pointing to the 2008 European Union Common Position on arms exports as evidence. The position in question, Council Common Position 2008/944/CFSP, which went into effect December 8, 2008, states that European countries should “deny a [weapons] export license if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.” Because this position is codified as a treaty in European Union legal codes, it has universal force within the EU and should act as the basis of actions regarding the arms trade for all European nations.

Expanding on this earlier EU treaty, the 2013 UN Arms Trade Treaty states that “a State Party shall not authorize any transfer of conventional arms…if it has knowledge at the time of authorization that the arms or items would be used in…attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party”. Further, it states that if there is an overriding risk of the undermining of peace or of the commitment or facilitation of serious violations of international humanitarian law or human rights law, that the exporting state should not authorize the export. France ratified this treaty on April 2, 2014, meaning that if they have violated any of these principles, they are fully liable, both under international law and under EU law.

There have been significant concerns raised by multiple actors regarding Saudi actions in Yemen, with Germany establishing a unilateral arms embargo against Saudi Arabia in October 2018, which was recently extended until September of this year, in response to evidence of humanitarian and human rights abuses by coalition forces. The United Nations Office of the High Commissioner for Human Rights released a 41-page report written by the Group of Regional and International Eminent Experts on Yemen in late 2018 which strongly suggests that the coalition had perpetuated, and continues to perpetuate, crimes and violations under international law. There are grounds to believe that the coalition “may have conducted attacks in violation of the principles of distinction, proportionality, and precaution that may amount to war crimes”.

UN Human Rights Chief Zeid Ra’ad al Hussein stated in March 2016 that “it would seem that the coalition is responsible for twice as many civilian casualties as all other forces put together, virtually all as a result of air strikes”. Despite the creation of a Joint Incidents Assessment Team and attempts to improve accountability, Hussein argues that Saudi efforts to address these potential violations of international humanitarian law continue to be woefully insufficient. Evidence has emerged that the assessment team has consistently failed to properly investigate allegations of airstrikes killing civilians. Further, the coalition lacks clear rules of engagement regarding compliance to international humanitarian law, meaning that it tends to respond to criticism in the aftermath of civilian casualties rather than working proactively to address potential dangers to civilians. This is reason to believe that abuses will continue. It is especially easy to draw this conclusion when, on March 26^th, an alleged Saudi airstrike struck a hospital run by Save the Children, leading to civilian casualties, including the deaths of four children.

The Saudi coalition has also engaged in the systematic bombing of food and water resources in Houthi-controlled areas. Research on patterns of bombing in Yemen reveals that in the “first 17 months of the Saudi-led bombing campaign there was “strong evidence that coalition strategy has aimed to destroy food production and distribution” in areas controlled by the Houthis and allied forces loyal to former president Ali Abdullah Saleh”. Further, in February 2016, reports indicated that Saudi planes bombed and destroyed a reservoir that served as a source of drinking water for thirty thousand people. Similar actions in 2018 show a consistent pattern of behaviour. The Protection of Objects Indispensable to the Survival of the Civilian Population Protocol Additional to the Geneva Conventions of 12 August 1949 states that “it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs [and] drinking water installation and supplies and irrigation works”. Thus, Saudi actions in these instances reflect another clear violation of international law.

Despite clear evidence of violations of international law by Saudi coalition members in Yemen, it remains unlikely that arms sales will slow. This is particularly apparent because the German embargo’s renewal included an exception which would allow Germany to continue to sell systems jointly developed with other countries to Saudi Arabia and its allies. They have already approved a serious of arms sales to the Saudi and UAE groups. Coupled with France’s refusal, at least initially, to curtail its arms sales, this fact suggests that political and economic interests will continue to take precedent over international law, even within “progressive” institutions like European Union.

Evan Schleicher is the Editorial Intern for the International Enforcement Law Reporter. He is currently an MA candidate in Security Policy Studies at George Washington University, focusing on transnational security and humanitarian issues.

ICC Rejection of Prosecutors Call to Investigate US Service Members for Alleged War Crimes Reveals The Role of Political Power in International Legal Frameworks

April 13, 2019 by Evan Schleicher Leave a Comment

On Friday, April 12^th, the International Criminal Court’s pre-trial judges unanimously rejected a request by the court’s chief prosecutor to investigate alleged war crimes and crimes against humanity committed in Afghanistan. This was about a week after the US revoked ICC prosecutor Fatou Bensouda’s visa over her continuing push to investigate alleged war crimes and crimes against humanity, particularly pertaining to actions taken by US armed forces and the CIA between 2003 and 2004. For more background on this, please see a recent blog post we have written on this topic.

In their decision on a potential investigation, the judges focused on a lack of cooperation received by the prosecutor and the changing political landscape and instability in Afghanistan, suggesting that these conditions are likely to persist. The central issue at play is one briefly mentioned in our last piece: From an international enforcement perspective, the controversy concerns whether a powerful state can assert its power to give impunity to its nationals when they are under investigation for war crimes.

Article 27 of the Rome Statute was included to avoid this manipulation by powerful actors and to produce equal justice across the world and society. It reads:

This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

Amnesty International has criticized the ICC for failing to hold the line on these standards and for too often giving into state demands. The ICC giving into the political influence of states is clearly an issue in the Afghanistan example, given that the investigation was halted due to a lack of support from the United States. This is a general trend between the ICC and powerful states, as these states have continued to exert their authority in the face of ICC attempts at investigation and prosecution. To begin, although the Rome statute, which set up the court, came into force in 2002, and 123 states are party to it, the US, Russia, China, India and others such as Israel have either not ratified or have rejected the treaty. South African efforts to withdraw from the Rome Statute reveals that even the strongest supporters of the ICC can be fickle when their geopolitical interests are affected by the Court’s activities. The US has been particularly aggressive in threatening ICC officials, with National Security Adviser John Bolton threatening sanctions against ICC officials if they pursue cases against US citizens. Due to the ability of these powerful countries to avoid prosecution, virtually all its cases were in Africa, which has strained the Court’s political base as accusations have emerged of anti-African bias.

This row over ICC authority to investigate American service members and CIA officers has also created an interesting jurisdictional question, as the US objects to the ICC’s jurisdiction over nationals of non-member countries, absent a referral to the court by the United Nations Security Council. However, ICC prosecutors have argued that because Afghanistan is an ICC member country, they have the authority to investigate and prosecute crimes which were committed within Afghan borders. Precedent in the international system might favor the latter interpretation, given that national governments already have the legal authority to investigate and prosecute foreign individuals who commit crimes within their borders. The geography of the crime remains an important factor in determining the jurisdictional limits of different organizations and states and, in the context of the ICC, geographic jurisdiction can be overcome de imperio by the Security Council (with permanent member agreement). The US seems to have generally accepted this premise at a level short of war crimes, given that the State Department website advises that they cannot get US citizens out of jail, state to a court that anyone is guilty or innocent, provide legal advice, or serve as officials interpreters or translators.

The ICC’s lack of capacity to hold powerful states accountable will likely force it to continue to focus its investigations on poorer, less politically powerful countries. Despite attempts by international legal authorities to promote equal justice over the world, investigations and prosecutions coming out of the ICC will continue to promote a culture of immunity within powerful countries and will continue to over focus on African and other politically peripheral countries within the international system.

The current issue of the IELR will carry a more in-depth discussion of the decision by Professor Michael Plachta.

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Evan Schleicher is an Editorial Intern with the International Enforcement Law Reporter. He is also an MA candidate in Security Policy Studies at George Washington University’s Elliott School of International Affairs.

U.S. Revokes Entry Visa for ICC Prosecutor over Afghanistan Row

April 5, 2019 by Alex Psilakis 1 Comment

On March 15, 2019, the IELR Blog detailed how the Trump administration pledged to block the entry of International Criminal Court (ICC) officials seeking to investigate U.S. personnel. On April 5, the Trump administration kept their word, revoking the visa of Public Prosecutor Fatou Bensouda.

“We can confirm that the U.S. authorities have revoked the prosecutor’s visa for entry into the U.S.,” Bensouda’s office wrote.

Since 2017, Bensouda, alongside her colleagues at the ICC, have been investigating alleged war crimes in Afghanistan. The investigation has reviewed allegations against all parties, including Afghan security forces and the Taliban, as well as U.S. personnel. The investigation may even expand to consider CIA activity within Afghan detention centers. A 2017 report from the Prosecutor’s office, which requested permission to launch the aforementioned investigation, made this clear, noting,

“The information available provides a reasonable basis to believe that members of the United States of America (“US”) armed forces and members of the Central Intelligence Agency (“CIA”) committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period.”

The State Department has not been shy in opposing the ICC’s efforts. When they denied Bensouda’s visa, their logic fell on this harsh line, as a spokesperson stated,

“The United States will take the necessary steps to protect its sovereignty and to protect our people from unjust investigation and prosecution by the International Criminal Court…One such measure now being implemented restricts the issuance of U.S. visas for those ICC officials who are determined to be directly responsible for any ICC effort to conduct a formal investigation of U.S. or allied personnel without the relevant country’s consent.”

Although the U.S. signed the Rome Statute in 1998, bringing the court into existence, they never ratified the treaty, meaning that they are under no legal obligation to abide by the court’s decisions. The U.S. has long feared that officially joining the ICC would dramatically impede their judicial sovereignty. In 2001, the U.S. implemented the American Service Members’ Protection Act, which provides U.S. and allied personnel immunity from the ICC. Yet most American allies, such as Germany, have proven firm supporters of the court since its foundation.

The ICC, meanwhile, has taken this attack by the U.S. in stride. Since Afghanistan signed onto the Rome Statute in 2003, the ICC believes that they possess the right to try American personnel if they please. “The ICC, as a court of law, will continue to do its work undeterred, in accordance with those principles and the overarching idea of the rule of law,” the court said. Bensouda and her office personally specified that they would be a part of that work, stating, “The prosecutor and her office will continue to undertake that statutory duty with utmost commitment and professionalism, without fear or favor.”

These statements by both the U.S. and ICC should not be viewed as surprising. In March, both sides claimed that they would do as they have done, with the U.S. pledging to prohibit entry of those ICC members investigating U.S. personnel, and the ICC pledging to continue their investigation regardless. Nevertheless, the rapid deterioration in relations still serves as a surprise, as the U.S. has never gone this far in their opposition to the international institution. The Trump administration, however, is no stranger to breaking with precedent, whether that be by moving the U.S. embassy in Israel to Jerusalem, questioning the value of NATO, or threatening to close the U.S.-Mexico border. With no side willing to back down, this conflict between the U.S. and ICC is set to continue until the court releases the findings of its investigation. If charges are made against U.S. personnel – which the ICC has made clear is wholly likely – then this conflict will reach a new, unprecedented level; perhaps a level even unprecedented in the age of Trump.

From an international enforcement perspective, the controversy concerns whether a powerful state can assert its power to give impunity to its nationals when they are under investigation for war crimes. If the U.S. protects its nationals from investigation for these offenses, then other countries, such as Russia and China, will emulate them.