In late 2017, the chief prosecutor of the International Criminal Court (ICC) requested permission to investigate war crimes and crimes against humanity committed in Afghanistan between 2003 and 2013. In what many have described as a brave move towards global justice, Fatou Bensouda hopes to hold to account the actions of U.S military personnel, members of the C.I.A, and opposition forces such as the Taliban and Afghan Government. The move has provoked a mixed response with many doubting its success, citing the lack of co-operation from prosecuted parties, in particular, the U.S, as a key challenge for the ICC.
Speaking at the United Nations General Assembly, Bensouda stated that “for decades the people of Afghanistan have endured the scourge of armed conflict.” She asserted that “following a meticulous preliminary examination of the situation… all legal criteria required under the ICC’s Rome statute to commence an investigation have been met.” The crimes to be investigated encompass war crimes and crimes against humanity such as murder, imprisonment, the use of child soldiers, the targeting of humanitarian workers, and executions conducted without sentencing through formal legal systems. Katherine Gallagher, a senior Lawyer at the Centre for Constitutional Rights in New York, applauded the step to hold individuals in the U.S. Military and C.I.A criminally accountable for their actions. She stated that “this long overdue message that no one is above the law is particularly important now, as the Trump administration ramps up military machinations in Afghanistan and embraces the endless war with no plan in sight.” The Human Rights Watch, an international organization documenting worldwide developments in human rights, further commented that “having documented egregious crimes in Afghanistan that have gone unpunished over many years, we hope this step will open a path to justice for countless victims.”
Despite these positive responses, the likely success of such an investigation remains highly questionable. Bensouda’s efforts follow an unusually lengthy preliminary process, stretching out over a period of ten years. This is due to a lack of capacity at the court, and lobbying efforts by the Afghan government attempting to block the process. In 2016, a spokeswoman for the U.S Department of State also expressed that they did not view the ICC investigation as “warranted or appropriate.” Without co-operation of states to build cases and enforce arrest warrants, the ICC runs the risk of tarnishing only their own reputation. The character of the ICC as an international organization makes it fundamentally political. It operates in accordance with institutional interests and a strong drive for self-preservation. For this reason, the ICC’s decision to allow an investigation into the alleged crimes committed by the U.S. superpower has led to some confusion and many questions.
The court is a unique body with a mandate to investigate and prosecute war crimes, crimes against humanity and genocide. Established in 2002, it is the first independent international tribunal. Since its inception, it has been more attractive to small to mid-powered nations, as they viewed the ICC as a body that could confront the excess of global superpowers, and pierce the hierarchies of international politics. Naturally, more powerful countries such as China, Russia and the U.S. have shown less support for the institution, due to the lack of direct control over the court. The Rome Treaty was signed by Bill Clinton, but was renounced by George W Bush, stating that it would lead to Americans being unfairly prosecuted for political reasons. Bush further authorized the government to ‘use any means necessary’ to bring back any American citizen detained by the court and enacted legislation prohibiting U.S. support of the ICC. His administration also pressured other states into bilateral immunity agreements that ensured they would never surrender U.S citizens to the court. However, the anti-ICC sentiment put out by the U.S. only legitimized a more positive perception of the court as an institution powerful enough to determine and influence the behaviours and interests of major powers.
Despite improved relations with the court during the time of Obama, it is apparent that the U.S. may never fully co-operate with the current investigation. The ICC relies on the co-operation and support of states. Although America is no longer a signatory to the Rome Statute or a member of the ICC, U.S. nationals can still be charged with crimes that are committed in member states, including Afghanistan. There are few crimes as grievous and horrific as those contravening the laws of warfare or those committed against humanity. As an international body, the ICC is the first to investigate and scrutinize the actions of U.S. officials. This is validating for an institution that many perceive to be incapable or unwilling to stand up to global powers. It strongly reinforces the sentiment that no person, or country, no matter how powerful or influential they are, is greater than or above the law.
To contend, a superpower will require the court to utilize effective and strategic communication. For the purpose protecting its reputation, the ICC needs to clarify to its global audience that it cannot control the politics that will result in any disagreement. It should articulate their genuine and neutral intention to protect the norms of international justice. Although the investigation may potentially highlight some of the court’s inefficiencies, its relevance and reputation may ultimately be enhanced. At the very least, it is fighting for the justice of victims to the worst crimes committed against humankind.
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