ICC Opens Investigation Into War Crimes In Afghanistan

The Appeals Chamber of the International Criminal Court (ICC) has overturned a decision made last year which blocked preliminary investigations into potential war crimes committed in Afghanistan. The ICC chief prosecutor, Fatou Bensouda, will therefore now be authorised to conduct research on alleged crimes against humanity in the region, both by the Afghan government and the Taliban, as well as U.S. forces and the CIA. The Pre-Trial Chamber had ruled in April, 2019, that while there was evidence for the alleged claims, the case would not be ‘in the interests of justice,’ as cooperation from the United States, Afghanistan and the Taliban was unlikely.

The press release admitted that the previous judgement had ‘erred’ in its citing of a conflict in the ‘interests of justice factor.’ While major responses have not yet come through, it can be expected that the decision will be widely lauded by human rights organisations, and conversely condemned by the Trump administration in America, which doesn’t recognise the ICC’s jurisdiction. Last year, the U.S. response to the request from the chief prosecutor was furious: Fatou Bensouda had her visa revoked, and Mike Pompeo, the U.S. Secretary of State, stressed the same would happen for any ICC investigators researching the case. Param-Preet Singh, the International Justice Director for Human Rights Watch, condemned the ICC’s pandering to U.S. threats as a ‘willingness to sacrifice the rule of law at the altar of what the political market will bear.’ The reopening of the case, therefore, is a vitally important reconsideration and statement of the ICC’s role in international arbitration.

The ICC has humbly realised its mistake, and Fatou Bensouda has shown her perseverance and tenacity – and belief in the case – in getting this ruling through the Appeals Court. This is a significant victory for victims of war crimes in Afghanistan who have already had to wait almost two decades to see their case opened and considered. Bensouda claimed that ‘there is a reasonable basis to believe that… members of the U.S. armed forces and the CIA have committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and rape.’ Such serious miscarriages of justice cannot be blocked by fearful and defensive threats from the U.S. Given the controversial nature of the recent Trump impeachment trial (essentially run by his own political party) the ICC has delivered an important and overdue message to the U.S. and the whole international community: justice will not and cannot be simply shouted down by red-faced and righteous politicians.

The U.S. recently signed a peace deal with the Taliban, with Donald Trump claiming he had ‘a very good talk’ over the phone with a Taliban leader in the following week. Clashes between Afghan and Taliban forces in the past few days, however, cast a long shadow over a seemingly historic ceasefire. The country has been torn apart by war since 2001. It has resulted in atrocities for all sides, and the ICC’s investigation rightly recognises this in its three-point plan to investigate the Afghan government, the Taliban, and the U.S. separately. All sides are potentially – indeed probably, given the confidence of Bensouda’s appeal – guilty, which should not come as a surprise.

The ICC’s decision is a victory of a symbolic nature. The practical implications of investigating a country like the U.S. when it flatly does not wish to be investigated – as we saw with the President’s recent impeachment trial – are yet to be seen. However, it is an incredibly important step in dignifying the victims of crimes. A victim, whatever the might and political clout of their aggressor, must necessarily be in the ‘interests of justice,’ and the overly cautious, obsequious decision of last year’s chamber suggested otherwise. That wrong has been righted.

Joel Fraser