The ICC Decision Not To Investigate US War Crimes In Afghanistan Makes A Mockery Of International Justice

The International Criminal Court stated that it would not investigate alleged war crimes committed by United States troops in Afghanistan since 2003. The rejection was voted unanimously by a pre-trial chamber on 12th April on grounds that “the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited.” This was despite the fact that the ICC had established “reasonable basis” for the claims and that the “relevant requirements [were] met as regards both jurisdiction and admissibility.”

The rejection of investigation was hailed by US President Donald Trump as a “major international victory.” The United States – in addition to China, Russia, and India – is not a ratified member of the 2002 UN treaty that established the ICC, and as such many in the US consider the rulings of the court to be an infraction of American sovereignty. Last September, US National Security Advisor John Bolton threatened the ICC with sanctions if it tried to prosecute US citizens. Mike Pompeo, the American Secretary of State said “we’re prepared to take additional steps, including economic sanctions if the ICC does not change its course” with regard to the investigation of potential war crimes.

While the White House may not like the long arm of ICC jurisdiction, prosecution of American actions is within the scope of the Court, as Afghanistan is a ratified member of the 2002 treaty. In contrast to the triumphalism from Washington, Amnesty International condemned the decision as “a shocking abandonment” of the citizens of Afghanistan. Biraj Patnaik, South Asia Director at Amnesty, emphasised that Afghanistan has been witness to over a decade of heinous crimes committed with virtual impunity and added that “none of the reasons given by the ICC judges justifies this decision. The gravest crimes can only ever be investigated in trying circumstances.”

After a protracted and ongoing war, the situation in Afghanistan is dire. In November 2016, the ICC published a report as a preliminary to a possible investigation of crimes against humanity and war crimes committed by the Taliban, the Afghan government, the CIA and other US forces. The alleged crimes against the CIA, principally in 2003-2004 but possibly as recently as 2014, included torture, cruel treatment, outrages upon personality, and rape; all with the intended aim of eliciting information to support US objectives.

More recently, a documentary film titled Combat Obscura has brought to light the extent of US abuses in the country. As was described in an interview with director Miles Lagoze on The Intercept, “Marines shoot guns and patrol, but they also insult women, shake their weapons at children, die needlessly and with little dignity, murder innocent people and cover it up.” Lagoze was deployed in the role of “combat camera”, which involves obtaining footage of conflicts for propaganda purposes. Instead, he ended up documenting the abhorrent conduct of the war in Afghanistan.

The scale of human suffering and loss is apparent, and yet it was judged insufficient to merit a proper investigation. It seems that the decision from the ICC was motivated by politics, rather than legality or consideration of justice for war crimes. Preceding the decision, the ICC prosecutor who requested the investigation, Fatou Bensouda, had her US visa revoked on 5th April, which appears to be a warning to those who would seek justice by challenging a world superpower.

The decision shows a complete disregard for justice and reparation for victims of the conflict, and its grounds for the rejection are hardly sound. The International Criminal Court was established for exactly a case such as this; when national governments cannot or will not investigate crimes against humanity. A body with the nominal purpose of pursuing supra-national justice has bowed in the face of power. This gives little hope for the people of Afghanistan where a war continues without impunity or oversight, and where the pursuit of justice plays second fiddle to politics.

David N Rose