The International Criminal Court’s prosecutor, Fatou Bensouda, appealed the court’s rejection to disallow her to continue with investigating alleged war crimes and crimes against humanity committed in Afghanistan since 1 May 2003. In its 12 April 2019 decision, the judges unanimously agreed that starting the investigation now would not serve justice. The perpetrators of the alleged crimes include the United States and the Taliban forces. The court cited the unlikelihood of cooperation from these parties, which makes any investigation near impossible.
In a 17-page document, the prosecutor sought an interpretation of the interests of justice, which was the main reason the application was rejected. She said that the appeal was not only about the situation in Afghanistan; it is likely to affect all cases independently referred to the ICC by the prosecutor.
The prosecutor showed dissatisfaction with the decision of the court also because the crucial criteria for jurisdiction and admissibility were met. Afghanistan is a state party to the ICC; therefore, the court has jurisdiction to intervene. The parties responsible for the heinous crimes are unwilling to try the perpetrators, therefore, the court should intervene to ensure that such crimes do not go unpunished. Bensouda thus argued that the reasons given by the court go against why the court was formed in the first place.
Several human rights groups have also condemned the court’s decision. The International Federation for Human rights regarded it as “a shocking decision, which is based on deeply flawed reasoning.” This is a big blow to the Afghan victims seeking justice.
The decision raised a critical question, including for scholars. Can the pre-trial chamber reject on grounds of interests of justice the prosecutor’s request to investigate?
In her request to open an investigation in 2017, Bensouda stated that there is information that U.S. armed forces and members of the US Central Intelligence Agency “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.” She also cited that Taliban forces and other insurgent groups are responsible for the killing of more than 17000 civilians since 2009. More than 7000 of the killings were targeted. In its request, the prosecution’s office argued that an investigation would serve the interests of justice, considering the gravity of the crimes and the interest of the victims.