Two officials of the International Criminal Court (ICC) have now been sanctioned by the United States. On Wednesday, September 2, the State and Treasury Departments took their first action on a sanctions program created in June by, first, restricting issuance of visas for unnamed ICC personnel and, second, adding two named individuals — Fatou Bensouda and Phakiso Mochochoko — to the Specially Designated Nationals and Blocked Persons List. Bensouda, as the Prosecutor and the Court’s highest-profile official, has long been seen as a target of this program. But Mochochoko may come as more of a surprise.

As previous Just Security articles have described, President Trump’s June Executive Order 13928 made good on repeated U.S. threats to take action against the ICC in response to the ICC’s investigation into potential U.S. abuses in Afghanistan since 2003. The order authorized “the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General” to designate foreign individuals and entities who “have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States.”

The consequences of being designated include:

• any assets the person has in the United States are frozen;
• the individual can no longer conduct transactions in U.S. dollars which may occur anywhere in the world;
• persons, including financial institutions, cannot conduct transactions with or provide services to the designated individual;
• the designated individual and their family members are barred from entering the United States; and
• anyone who materially assists the designated individual can themselves be designated.

However, the original E.O. was “naked,” meaning that while it authorized designation for involvement with the Afghanistan investigation, it did not actually designate anyone. After two relatively quiet months in U.S.-ICC relations, that designation came on Wednesday and included a name unfamiliar to many, that of the head of the ICC’s Jurisdiction, Complementarity and Cooperation Division. This begs the question: Why include the relatively unknown Mochochoko?

The most obvious reason for Mochochoko’s designation is that he has allegedly supported the inquiry into potential U.S. wrongdoing in Afghanistan. In remarks earlier this year, Pompeo identified Mochochoko by name as one of the key individuals at the ICC “helping drive … Bensouda’s effort to use this court to investigate Americans.” Pompeo drew a similar connection when announcing the designations on Wednesday, using the language of the E.O. to describe Mochochoko as having “materially assisted Prosecutor Bensouda” in the Afghanistan investigation.

The ICC’s Afghanistan investigation — and, to a somewhat lesser extent, its investigation into potential wrongdoing in Palestine — has been at the heart of the United States’ recent grievances with the institution. As Pompeo frequently points out, the United States never ratified the ICC’s founding document, the Rome Statute, and accordingly has expected the ICC to leave it alone. However, Afghanistan is a party to the Rome Statute, and alleged U.S. abuses, including many documented by Human Rights Watch, occurred on the territory of Afghanistan and other parties to the statute. To the U.S. government’s great chagrin, the ICC investigation has proceeded on this basis. Thus, the United States’ core objection to the Afghanistan investigation relates to Mochochoko’s remit at the ICC — jurisdiction.

To make matters worse from the U.S. government’s perspective, there are three circumstances under which “the exercise of the Court’s jurisdiction can be triggered where crimes under the Court’s jurisdiction appear to have been committed”: when a state party requests an investigation, when the United Nations Security Council refers an investigation to the Court, or at the ICC prosecutor’s discretion (when the crimes occur on the territory of a state party or are perpetrated by a national of a state party). In the Afghanistan investigation we have an example of the third circumstance. No one formally asked the Court to look into potential U.S. and other abuses. The Court is exercising jurisdiction — in the U.S. government’s view, overextending its jurisdiction — entirely of its own accord. Although few would argue that the Court actually lacks a legal basis for jurisdiction, this element of discretion combined with the lack of U.S. consent has led some to argue that the Court’s jurisdiction is accordingly illegitimate and ill-advised.

Given the consequences of designation described above, all the U.S. government needed to do to essentially bring the ICC’s operations to a halt was designate one key actor, which it could have accomplished by simply designating Bensouda. By simultaneously designating Mochochoko, the United States pointed to the substance of its argument against the ICC, rather than simply the existence of a dispute.

Whether intentional or not, the United States also sent a clear message about who should bear responsibility. The September 2 designations have targeted the two African and non-White-passing individuals among the five public-facing officials in the ICC’s Office of the Prosecutor. In spite of potential connections to the Afghanistan investigation by virtue of their positions, the United States did not designate Deputy Prosecutor James Stewart, Director of the Investigations Division Michel de Smedt, or Director of the Prosecutions Division Fabricio Guariglia. It designated Bensouda and Mochochoko.

As the United States reckons with racial justice and its history of racialized violence at home, this fact strikes a particularly sour note. And it curiously replicates criticism of the ICC itself for training its sights on non-White, especially African, leaders when considering who is worthy of condemnation and punishment.

How and whether work at the ICC will proceed in light of this latest development remains to be seen. The Court has likely been preparing for a move along these lines — at least designation of Bensouda — for some time. But the U.S. government has highlighted that it will not hesitate to use the dominance of U.S. financial markets to express its opposition to the ICC’s actions, as they relate both to the Afghanistan investigation and to the question of the ICC’s jurisdiction.

Image: NICHOLAS KAMM/POOL/AFP via Getty

The post Why Them? On the U.S. Sanctions Against Int’l Criminal Court Officials appeared first on Just Security.

Last year, the Trump administration placed restrictions on visas for travel to the United States for ICC employees. In March, Pompeo threatened two named ICC employees with punitive sanctions in remarks to the press in his official capacity as Secretary of State (see Just Security coverage here and here). Then, on Monday, Pompeo stated, in an interview with the American Enterprise Institute podcast, “What The Hell Is Going On,” that the public would soon see “a series of announcements from not just the State Department, [but] from all across the United States government that attempt to push back against what the ICC is up to.”

With this announcement, it is important to understand the personal stake Pompeo may have in hindering the ICC’s ongoing activities.

Human Rights Watch (HRW) has reported that, from late 2017 to mid-2019, “CIA-backed Afghan strike forces committed serious abuses, some amounting to war crimes.” The report described U.S. involvement in extrajudicial killings by CIA-backed forces in the course of kill-or-capture operations, counterterrorism operations, and airstrikes accompanying night raids. It also detailed assaults, arbitrary detentions, and summary executions during night raids by Afghan forces, often accompanied by U.S. forces. As the report indicates, “Even where no US forces take part in the operation, the US military often provides logistical and tactical support to these CIA-backed operations, including planning, delivering the forces to the location via helicopters, and providing air support.” HRW Senior Researcher Patricia Grossman also outlined these allegations for Just Security in 2019.

That civilian casualties increased in the period from 2017 to 2019, according to HRW, is not necessarily surprising. As their report notes, senior Trump administration officials told the New York Times in October 2017 that “the C.I.A. is expanding its covert operations in Afghanistan, sending small teams of highly experienced officers and contractors alongside Afghan forces to hunt and kill Taliban militants across the country.” Ten days before the Times story was published, then-CIA Director Pompeo announced that, “with the President’s backing, we’re taking several steps to make CIA faster and more aggressive.”

These reported abuses raise questions about the ICC’s Afghanistan investigation, which the Court’s Office of the Prosecutor (OTP) has been looking into since before 2007 and officially investigating since March.

Following a decade-long “preliminary examination” of the Afghanistan situation, the OTP requested to move forward with an official investigation in November 2017. (Because the OTP brought the case under its own initiative, it must obtain permission from the Court to transition from the preliminary examination to investigation phases). While the Court’s Pre-Trial Chamber initially denied the OTP’s request, the ICC Appeals Chamber overturned this decision on March 5, 2020, and authorized the opening of an investigation “in relation to alleged crimes committed on the territory of Afghanistan in the period since May 2003” (for an explanation of this decision and its likely implications, see here).

For the most part, the ICC Office of the Prosecutor has focused, with respect to alleged crimes committed by U.S. forces and members of the CIA, on the period of the George W. Bush administration—from 2002 to 2008, with a particular emphasis on the 2003-2004 period. However, the Prosecutor has outlined various alleged crimes, committed by Taliban and affiliated armed groups, after this timeframe.

What’s more, not only did the Appeals Chamber leave the investigation’s timeframe open-ended, but it explicitly overruled the Pre-Trial Chamber’s holding, which limited the Prosecutor to solely investigating — and seeking indictments for — incidents specifically mentioned in the Prosecutor’s initial filing requesting authorization to investigate along with incidents “closely linked” thereto. In pertinent part, the Appeals Chamber held (at para. 62):

In relation to the Afghanistan situation, the Appeals Chamber notes that the Prosecutor presented information regarding the alleged large scale commission of multiple crimes against humanity and war crimes by various armed groups and actors involved in the conflict, which began prior to the entry into force of the Rome Statute on 17 July 2002 and continues to the present day. This information was accepted by the Pre-Trial Chamber as providing a reasonable basis to believe that the alleged events occurred and that they may constitute crimes within the jurisdiction of the Court. Given the scope of the information presented by the Prosecutor and accepted by the Pre-Trial Chamber, the Appeals Chamber considers that the requirements [necessary for the Pre-Trial Chamber to authorize the commencement of an investigation] would be met by granting the authorisation in the terms requested by the Prosecutor, which sufficiently defines the parameters of the situation. (emphasis added)

In short, the “parameters” of the situation the Prosecutor was authorized to investigate explicitly encompass all crimes occurring on the territory of Afghanistan — and a handful of other states involved in the U.S. extraordinary rendition of individuals from Afghanistan — under the jurisdiction of the ICC from 2002 onwards. More recent incidents may also be easier in some respects for the Prosecutor to investigate for several reasons, including the availability and memories of witnesses.

Having served as CIA director from January 2017 until April 2018 and as Secretary of State thereafter, Pompeo could potentially be personally culpable, under Articles 25 and 28 of the ICC’s Rome Statute, for some or all of the alleged CIA participation in potential war crimes and crimes against humanity described in the HRW report. The modes of liability through which Pompeo could be found culpable include, but are not limited to, ordering, soliciting, or inducing others to commit the crime, or exercising command or superior responsibility over perpetrators of such crimes.

This is not to suggest that there are any strong indicators pointing toward Pompeo’s personal culpability for international crimes occurring in Afghanistan in recent years, or that Prosecutor Fatou Bensouda and the OTP have any interest in further complicating the already monumental task they face in trying to obtain evidence, secure suspects, and conduct trials. Nor do the ICC prosecutors need to investigate or indict Pompeo for its work to implicate him personally. If the Court pursues potential crimes committed by the CIA under his leadership, that alone could be damaging.

It is hard to envision any scenario wherein Pompeo would actually face an indictment, let alone be extradited to The Hague, but the OTP has been explicitly handed the authority to investigate U.S. misconduct in Afghanistan in which Pompeo may be implicated. Bensouda has the power to investigate the CIA, including its senior leadership, and to make the investigation’s findings public. This is an important element of the landscape to keep in mind when the U.S. government “push[es] back” against the ICC as Pompeo promised.

 Image: United Nations, New York

The post Pompeo’s Personal Stake in the International Criminal Court’s Afghan Investigation appeared first on Just Security.

In addition to Sudan, the decision most directly implicates ongoing litigation against Saudi Arabia for the attacks on Sept. 11, the crafting of congressional legislation to allow civil actions against China related to coronavirus, and the ability of companies to escape liability for supporting actors who engaged in terrorism.

The 1998 Embassy Bombings

For a case in which certiorari was granted only on a technical question, the opinion for the Court (with Justice Kavanaugh recused) opens with a particularly emotional appeal. Justice Gorsuch writes: “In 1998, al Qaeda operatives simultaneously detonated truck bombs outside the United States Embassies in Kenya and Tanzania. Hundreds died, thousands were injured.” However, al-Qaeda does not seem to have acted alone. Plaintiffs alleged that the Sudanese government back then assisted al-Qaeda in perpetrating these attacks.

At the time of the bombings, Sudan was already considered a state sponsor of terrorism. Its involvement in the 1998 attack was observed in the findings of the District Court for D.C. which issued a default judgment (at that stage, Sudan had not appeared to contest the litigation):

Sudan harbored and provided sanctuary to terrorists and their operational and logistical supply network. Bin Laden and al Qaeda received the support and protection of the Sudanese intelligence and military from foreign intelligence services and rival militants. Sudan provided Bin Laden and al Qaeda hundreds of Sudanese passports. The Sudanese intelligence service allowed al Qaeda to travel over the Sudan-Kenya border without restriction, permitting the passage of weapons and money to supply the Nairobi terrorist cell.

The State Sponsor of Terrorism Exception to Foreign Sovereign Immunity

This case found itself in U.S. courts because of a series of amendments to the Foreign Sovereign Immunities Act (FSIA), which provide an exception for state sponsors of terrorism. Congress first established the exception in 1996, two years before the embassy bombings in Kenya and Tanzania. However, the 1996 amendment was interpreted as having withdrawn only immunity from state sponsors of terrorism without creating a new federal cause of action. The only avenue available to all plaintiffs, then, was state causes of action.

Congress responded in the National Defense Authorization Act (NDAA) for Fiscal Year 2008 by removing state sponsors of terrorism from the FSIA’s general list of exempt entities and inserting a separate section for this category of defendants. The new section 1605A created a federal cause of action for U.S. citizens, members of the U.S. armed forces, U.S. government employees and contractors, and the legal representatives of these groups. 1605A also provided that such plaintiffs could seek punitive damages.

Retroactive Punitive Damages

The FSIA generally bars punitive damages in suits proceeding under the act’s exceptions for foreign sovereign immunity. Even the 1996 addition of state sponsors of terrorism to the list of exceptions barred punitive damages against such entities. So the addition in 2008 of punitive damages to 1605A marked a decisive change.

While accepting that the 1996 amendment meant it was not entitled to immunity, Sudan argued that the FSIA’s ban on punitive damages applied up until the 2008 NDAA was passed. This reading would make punitive damages available only for terrorist attacks that took place after section 1605A’s creation.

One of the key cases in the parties’ briefs and oral arguments was Landgraf v. USI Film Products, which rejected retroactive application of compensatory and punitive damages under the Civil Rights Act of 1991. Landgraf and subsequent cases outline a general presumption that Congress legislates prospectively when creating new legal consequences, giving actors the opportunity to tailor their conduct accordingly. To overcome that presumption, there must be an “expression of [Congress’s] clear intent that the statute be applied retroactively.” A unanimous three-judge panel of the DC Court of Appeals found that the legislation failed to satisfy the test.

The Supreme Court’s opinion declared without any ambiguity that the 2008 NDAA satisfied Landgraf. Specifically, “Congress was as clear as it could have been when it authorized plaintiffs to seek and win punitive damages for past conduct … Congress proceeded in two equally evident steps: (1) It expressly authorized punitive damages under a new cause of action; and (2) it explicitly made that new cause of action available to remedy certain past acts of terrorism.”

This does not mean that punitive damages will be automatic under 1605A. In future cases, it will still be up to district courts to determine whether they are appropriate, as with any other cause of action where punitive damages are available. In this case, the Supreme Court declined to decide whether punitive damages were available to foreign-national family members to whom the federal cause of action under 1605A is not available. But it hinted strongly that they should:

The court of appeals refused to allow punitive damages awards for foreign-national family members proceeding under state law for “the same reason” it refused punitive damages for the plaintiffs proceeding under [the] federal cause of action. The court stressed that it would be “puzzling” if punitive damages were permissible for state claims but not federal ones. Having now decided that punitive damages are permissible for federal claims, and that the reasons the court of appeals offered for its contrary decision were mistaken, it follows that the court of appeals must also reconsider its decision concerning the availability of punitive damages for claims proceeding under state law.

Monday’s decision does not prevent constitutional challenges against the retroactivity of punitive damages under the FSIA, though. In particular, Justice Gorsuch acknowledged that “punitive damages aren’t merely a form of compensation but a form of punishment, and we don’t doubt that applying new punishments to completed conduct can raise serious constitutional questions.” The issue here is that Sudan did not explicitly challenge the constitutionality of the 2008 NDAA, but perhaps Sudan itself or another litigant will in the future.

Constitutional Protections for Foreign States

The success or failure of such constitutional challenges will turn on a question that has yet to be decided by the Supreme Court: whether foreign states are constitutionally protected “persons.” Beyond the facts of this case, one of the most significant outcomes of Monday’s decision may be its suggestion that foreign sovereigns are not protected in this way.

In addition to Landgraf, the other important precedent at play was Republic of Austria v. Altmann. In Altmann, the Court had already approved an element of retroactivity in the FSIA context — namely, that the FSIA’s waiver of sovereign immunity for cases involving “rights to property taken in violation of international law” applied retroactively. Discussing Altmann, the opinion describes foreign sovereign immunity as a “gesture of grace and comity” that “may be withdrawn retroactively without the same risk to due process and equal protection principles that other forms of backward-looking legislation can pose.”

Does this necessarily mean that foreign sovereigns aren’t entitled to constitutional protections in other respects? There are three reasons to believe the Court was gesturing to this outcome.

First, a number of lower court cases have held that foreign states are not protected by due process limitations on the exercise of personal jurisdiction over them. Instead of minimum contacts, the FSIA currently provides their only protection from being haled into federal courts. So, when FSIA protections are lifted “without the same risk to due process or equal protection principles,” it raises the question whether due process and equal protection were available in at all.

Second, the retroactivity at issue in Opati relates to punitive damages. Perhaps the issue of immunity in general does not relate to constitutional protections, but the retroactive application of punitive damages certainly does, as Landgraf indicates. Indeed, Gorsuch’s other remark about constitutional implications of punitive damages reflected this understanding as well (“punitive damages aren’t merely a form of compensation but a form of punishment, and we don’t doubt that applying new punishments to completed conduct can raise serious constitutional questions.”). What’s more, the Court’s refusal to consider any constitutional implications of retroactive punitive damages because Sudan did not challenge the 2008 NDAA as unconstitutional rings hollow.

The D.C. Circuit’s decision below cited constitutional concerns regarding this retroactive application. Sudan relied on this finding in its brief opposing certiorari and cited the constitutional concerns from Landgraf in its brief on the merits. Counsel for the victims also explicitly asserted at oral argument that foreign sovereigns are not protected by the Due Process Clause. With all this — and given the existing state of the law, which indicates at least in other contexts that foreign states are not afforded constitutional protections — it would seem the Court could have spoken up to indicate otherwise if it wanted to. The Court’s decision to avoid going down that path is not simply because Sudan did not raise a direct constitutional challenge to the statute.

Finally, when read in light of justices’ questions at oral argument, Monday’s decision seems more clearly opposed to constitutional protections for foreign sovereigns. Three out of the eight justices cast doubt on the notion. Justice Alito asked, “In a case involving … a private defendant, rather than a sovereign nation, are there constitutional limits on Congress’s ability to make punitive damages retroactive?” Chief Justice Roberts challenged, “If Landgraf … is a sort of substantive interpretive canon that is based on constitutional concern, why would it apply at all in a case involving a foreign sovereign?” Justice Kagan expressed disbelief at the notion that a defendant foreign state could challenge retroactive legislation that didn’t include punitive damages — even though private parties can do precisely that on constitutional grounds. Justice Breyer was perhaps more open to the idea, quipping, “I guess if corporations are persons, maybe foreign countries are too.”

All of this is ultimately an exercise in reading tea leaves, since in fact the Court did not decide whether foreign sovereigns are constitutionally protected persons. But taken all together, those tea leaves seem to suggest the Court is not inclined to consider foreign sovereigns as “persons” after all.

Foreign States’ Accountability for Terrorist Attacks on and After 9/11

Due process protections — or the lack thereof — should not be foreign sovereigns’ only cause for concern in the decision, however, because the 2008 NDAA was not the end of the story with FSIA amendments. Take the 2016 Justice Against Sponsors of Terrorism Act (JASTA), which grew out of a federal fact-finding commission that looked into the planning, funding, and carrying-out of the 9/11 attacks. JASTA amended the FSIA and Anti-Terrorism Act to create a civil remedy for U.S. victims of terrorist attacks on or after 9/11 against both foreign states and private parties, including for aiding and abetting and civil conspiracy.

JASTA was passed in response to a case, which had been dismissed at the district court level, brought against the Kingdom of Saudi Arabia. The plaintiffs alleged that Saudi Arabia “directly and knowingly assisted the hijackers and plotters who carried out the [9/11] attacks” and indirectly funded and provided operational support to the attackers through charity organizations.

When the case returned to district court, after having been vacated and remanded by the circuit court in light of JASTA, Saudi Arabia raised concerns of retroactivity in its request that the case be dismissed. The district court found that, with the passage of JASTA, Congress “provide[d] courts with new legal principles to apply, retroactively and prospectively, in determining claims for sovereign immunity.”

Had yesterday’s decision in Opati come out the other way on retroactivity, finding that Congress had not been sufficiently clear in the 2008 NDAA, Saudi Arabia might have successfully argued that JASTA, too, was insufficiently clear to apply retroactively. Now, this line of argument is virtually unavailable, especially because of the opinion’s characterization of foreign sovereign immunity as something that can be relatively lightly revoked.

Multinational Companies and Support for Terrorism

Although the “grace and comity” argument is limited to foreign sovereigns, the implications of the Opati decision may go even further. Recall that JASTA applies to both foreign states and private parties.

Numerous complaints have already been filed against companies for supporting acts of terrorism that took place before JASTA was passed. For example, the plaintiffs in Atchley v. AstraZeneca UK Ltd. allege that Western medical-supply companies made corrupt payments to the Iraqi ministry in charge of importing medical goods, which then used those payments to support attacks on Americans in Iraq between 2005 and 2011.

Constitutional objections to JASTA may still be available to the Atchley defendants and other private parties in a way they are not available to foreign states. However, the Opati decision reversing the D.C. Circuit’s finding that Landgraf’s standard was not met in that case may be read as “water[ing] down” protections against retroactive applications of law and opening the door to a finding that JASTA also satisfies Landgraf with respect to private parties. Such a result would surely be troublesome for companies operating overseas, but welcome news to human rights advocates, who have seen liability in U.S. courts for abuses abroad substantially limited in recent years.

Image: The bomb-damaged U.S. Embassy in Dar es Salaam, Tanzania following a terrorist attack on Aug. 7, 1998. Photo courtesy of Sgt. Maj. Lynn Kimble/The United States Marine Corps.

The post The Significance of the Supreme Court’s Opati Decision for States and Companies Sued for Terrorism in U.S. Courts appeared first on Just Security.