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The Trump Administration Revokes the ICC Prosecutor's U.S. Visa Shortly Before the ICC Pre-Trial Chamber Declines to Authorize an Investigation into War Crimes in Afghanistan

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On April 4, 2019, the United States revoked the visa of Fatou Bensouda, the prosecutor of the International Criminal Court (ICC). This action occurred less than a month after Secretary of State Mike Pompeo announced that, except to the extent otherwise required by the UN Headquarters Agreement, the United States would impose visa restrictions on “those individuals directly responsible for any ICC investigation of U.S. personnel.” In her preliminary investigation into the situation in Afghanistan, Bensouda had specifically listed war crimes by U.S. military and intelligence agencies as one of several categories of crimes that her office found reason to believe had occurred. Approximately one week after Bensouda's visa revocation, the ICC's Pre-Trial Chamber (PTC) denied her request to move forward with an investigation of the situation in Afghanistan.

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References

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1 Marlise Simons & Megan Specia, U.S. Revokes Visa of I.C.C. Prosecutor Pursuing Afghan War Crimes, N.Y. Times (Apr. 5, 2019), at https://www.nytimes.com/2019/04/05/world/europe/us-icc-prosecutor-afghanistan.html; see also UN News, Arrest of Three Libyans Wanted for Grave Crimes “Would Send Strong and Necessary Message” to Victims, Urges Top Prosecutor (May 8, 2019), at https://news.un.org/en/story/2019/05/1038171 [hereinafter UN News Story on Libya Briefing] (noting that the revocation occurred on April 4).

2 U.S. Dep't of State Press Briefing, Remarks to the Press (Mar. 15, 2019), at https://www.state.gov/secretary/remarks/2019/03/290394.htm [https://perma.cc/8U82-HYCM] [hereinafter Remarks to the Press 2019].

3 Int'l Crim. Ct., 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 (Nov. 20, 2017), at https://www.icc-cpi.int/Pages/item.aspx?name=171120-otp-stat-afgh.

4 See generally Situation in the Islamic Republic of Afghanistan, ICC-02/17, Decision Pursuant to Article 15 of the Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (Apr. 12, 2019), available at https://www.icc-cpi.int/CourtRecords/CR2019_02068.PDF [hereinafter Decision on the Situation in Afghanistan].

5 See Remarks to the Press 2019, supra note 2.

6 John Bolton, National Security Advisor, Protecting American Constitutionalism and Sovereignty from International Threats (Sept. 10, 2018), available at https://www.justsecurity.org/60674/national-security-adviser-john-bolton-remarks-international-criminal-court; see also Jean Galbraith, Contemporary Practice of the United States, 113 AJIL 131, 169, 169–73 (2019) (discussing Bolton's speech and responses to it).

7 Bolton, supra note 6.

8 Id.

9 Id.

10 Immigration and Nationality Act, 8 U.S.C. § 1182(a)(3)(C)(i) (2012); see also Remarks to the Press 2019, supra note 2 (quoting language from 8 U.S.C. § 1182(a)(3)(C)(i) (2012)); cf. Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018) (holding that § 1182(f) of the Immigration and Nationality Act grants the president “broad discretion to suspend the entry of aliens into the United States” if the president finds it “would be detrimental to the national interest”).

11 Remarks to the Press 2019, supra note 2.

12 Simons & Specia, supra note 1.

13 Agreement Between the United Nations and the United States Regarding the Headquarters of the United Nations, UN-U.S., June 26, 1947, 61 Stat. 756.

14 Id. Art. IV, § 11.

15 Id. Art. IV, § 13(a).

16 Pub. L. No. 80-357, 61 Stat. 756 (1947).

17 Id., Annex 2, § 6.

18 A more detailed description of this disagreement—and of instances in which the United States has refused to provide accredited foreign nationals with access to the Headquarters District—can be found in Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States, 108 AJIL 516, 523–28 (2014).

19 See, e.g., Memorandum by the Legal Department, Admission of Representatives of Non-governmental Organizations Enjoying Consultative Status, UN Doc. E/2397 (Apr. 10, 1953), available at https://history.state.gov/historicaldocuments/frus1952-54v03/d82 (also arguing that “in the event that the provision in section 6 of the Joint Resolution had been intended by the United States to constitute a reservation, it was never made known to the General Assembly as such, and it was never considered by the General Assembly nor accepted by it”).

20 See, e.g., Letter from Donold B. Lourie, Under Secretary of State for Administration, to Henry Cabot Lodge Jr., Ambassador to the UN (May 1, 1953), available at https://history.state.gov/historicaldocuments/frus1952-54v03/d89.

21 Daugirdas & Mortenson, supra note 18, at 526 (quoting a 1988 State Department press release and noting that the United Nations legal counsel promptly contested this claim) (quotation marks omitted).

22 Remarks to the Press 2019, supra note 2.

23 SC Res. 1970, paras. 4, 7 (2011) (referring the situation in Libya to the ICC and inviting the prosecutor to brief the Security Council at six month intervals on developments); SC Res. 1593, paras. 1, 8 (2005) (referring the situation in Darfur to the ICC and inviting the prosecutor to brief the Security Council at six month intervals on developments).

24 UN Press Briefing, Daily Press Briefing by the Office of the Spokesperson for the Secretary-General (Apr. 5, 2019), at https://www.un.org/press/en/2019/db190405.doc.htm.

25 UN News Story on Libya Briefing, supra note 1.

26 Mike Corder, US Revokes Visa for International Court Prosecutor Bensouda, Assoc. Press (Apr. 5, 2019), at https://www.apnews.com/a5e0748b9b7443e683c6a0f4e0c7d509. The U.S. State Department confirmed Bensouda's visa revocation due to her own public statement on the matter. Id.

27 Human Rights Watch, US Threatens International Criminal Court Visa Bans on ICC Staff (Mar. 15, 2019), at https://www.hrw.org/news/2019/03/15/us-threatens-international-criminal-court.

29 See Decision on the Situation in Afghanistan, supra note 4, paras. 5, 20.

30 Id., para. 96.

31 Id., paras. 47–48.

32 Id., paras. 87–96. The Rome Statute provides that, in deciding whether to initiate an investigation, the prosecutor should consider whether or not an investigation would “serve the interests of justice.” Rome Statute of the International Criminal Court, Art. 53(1)(c), 2(c), July 1, 2002, 2187 UNTS 90 [hereinafter Rome Statute]. It also provides that, where the prosecutor decides to initiate an investigation, the PTC is to “authorize the commencement of the investigation” if it “considers that there is a reasonable basis to proceed with an investigation.” Id. Art. 15(4). Although the Rome Statute nowhere explicitly instructs the PTC to assess “the interests of justice,” the PTC considered that, as “a statutory legal parameter governing the exercise of the prosecutorial discretion,” this criterion therefore “also [fell] within the scope of the scrutiny mandated to [the PTC] over that discretion for the purposes of the determinations under article 15.” Decision on the Situation in Afghanistan, supra note 4, para. 88.

33 Decision on the Situation in Afghanistan, supra note 4, paras. 93–95.

34 Id., para. 94.

35 Id., para. 96.

36 Int'l Crim. Ct., Statement of the Office of the Prosecutor Following the Decision of Pre-Trial Chamber II Concerning the Situation in Afghanistan (Apr. 5, 2019), at https://www.icc-cpi.int/Pages/item.aspx?name=190412-otp-stat-afghanistan.

37 Rome Statute, supra note 32, Art. 15(5).

38 See Kevin Jon Heller, Can the PTC's Afghanistan Decision Be Appealed?, Opinio Juris (Apr. 12, 2019), at http://opiniojuris.org/2019/04/12/can-the-ptcs-afghanistan-decision-be-appealed (discussing this issue and expressing doubt about the reviewability of the PTC's decision).

39 Rome Statute, supra note 32, Art. 82(1); see also Situation in the Democratic Republic of the Congo, ICC-01/04, Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal, para. 39 (July 13, 2006), available at https://www.icc-cpi.int/CourtRecords/CR2006_01806.PDF (stating that “[Article 82] defines exhaustively the right to appeal against decisions of first instance courts, namely decisions of the Pre-Trial or Trial Chambers”).

40 Rome Statute, supra note 32, Art. 82(1)(a) –(d). As mentioned in note 32, supra, the Rome Statute does not explicitly vest the PTC with the power to review the prosecutor's decision regarding “the interest of justice,” so it is perhaps unsurprising that Article 82 is silent with respect to appealability on this ground.

41 Id. Art. 82(1)(a).

42 Decision on the Situation in Afghanistan, supra note 4, para. 96.

43 Rome Statute, supra note 32, Art. 82(1)(d).

44 Situation in the Islamic Republic of Afghanistan, ICC-02/17, Request for Leave to Appeal the “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, at paras. 7, 37 (June 7, 2019), available at https://www.icc-cpi.int/CourtRecords/CR2019_03060.PDF (further noting that “notwithstanding the Prosecution's reliance on article 82(1)(d) for purposes of this application, the [PTC's] Decision is much more similar in character to a ‘final decision,’ where the benefits of appellate scrutiny are immediately apparent and widely accepted”).

45 Am. Civ. Liberties Union, ACLU Comment on ICC Decision Not To Investigate U.S. for War Crimes in Afghanistan (Apr. 12, 2019), at https://www.aclu.org/news/aclu-comment-icc-decision-not-investigate-us-war-crimes-afghanistan.

46 See, e.g., Gabor Rona, More on What's Wrong with the ICC's Decision on Afghanistan, Opinio Juris (Apr. 15, 2019), at https://opiniojuris.org/2019/04/15/more-on-whats-wrong-with-the-iccs-decision-on-afghanistan (observing that “the mere appearance of a potential link” between U.S. behavior and the PTC's decision “will weigh heavily on the credibility of the ICC in the future”); Alex Whiting, The ICC's Afghanistan Decision: Bending to U.S. or Focusing Court on Successful Investigations?, Just Security (Apr. 12, 2019), at https://www.justsecurity.org/63613/the-iccs-afghanistan-decision-bending-to-u-s-or-focusing-court-on-successful-investigations (acknowledging how the PTC's decision communicates that the ICC “will often be unable to proceed against powerful states,” because it “can only succeed where it has international support”).

47 Donald J. Trump, Statement on the International Criminal Court's Decision Not to Authorize an Investigation into the Situation in Afghanistan, 2019 Daily Comp. Pres. Doc. No. 224 (Apr. 12).

48 Id.

49 See Netanyahu Says ICC Decision Not to Probe US Troops Bodes Well for Israel, Times Israel (Apr. 14, 2019), at https://www.timesofisrael.com/netanyahu-says-icc-decision-not-to-probe-us-troops-bodes-well-for-israel.

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