The International Criminal Court ruled unanimously on Thursday to authorize its chief prosecutor to investigate whether war crimes were committed in Afghanistan by the Taliban, Afghan military and American-led forces.
The ICC appeals chamber's decision reverses a preliminary ruling from a pre-trial chamber nearly a year ago. Presiding Judge Piotr Hofmanski said the pre-trial chamber "erred" by weighing if the "interests of justice" would be served, instead of looking only at whether crimes were committed.
The pre-trial chamber's decision in April 2019 already "contained all the necessary factual findings and had confirmed that there is a reasonable basis to consider that crimes within the ICC jurisdiction have been committed in Afghanistan," the Polish judge said in a statement.
As a result, the appeals chamber authorized ICC's chief prosecutor, Fatou Bensouda, to look into alleged war crimes in Afghanistan since May 1, 2003, when the nation joined the court, and similar crimes there since the ICC's authorizing Rome Statute took effect on July 1, 2002.
The Rome Statute, an international treaty that underpins the ICC’s authority, was first adopted by 12o nations in July 1998. The United States was among seven nations that voted against it; China, Iraq, Israel, Libya, Qatar and Yemen were the others. Two years later, then-U.S. President Bill Clinton signed the treaty. But the U.S. Senate never ratified it.
Bensouda, a Gambian lawyer and maritime law expert, has been ICC’s chief prosecutor since June 2012 and ICC deputy prosecutor since 2004. Before joining the world's top war crimes tribunal, she was a legal adviser and trial attorney at the International Criminal Tribunal for Rwanda.
In November 2017, she asked ICC judges for permission to open an investigation into alleged war crimes committed by Taliban and Haqqani network militants, Afghan national security forces, and U.S. forces and intelligence in Afghanistan since May 2003. The ICC’s preliminary examination of allegations of serious international crimes in Afghanistan began in 2006.
In September 2018, U.S. President Donald Trump’s then-national security adviser, John Bolton, harshly condemned the ICC, one of the most-hated international organizations for American conservatives. Bolton used his first major address as a Trump adviser to lash out against the court — and what has been until now a U.S.-led system of international rules, laws and order.
His speech, which he delivered on the eve of the anniversary of the 9/11 terrorist attacks, came in response to Bensouda's request for an investigation, which includes an examination of U.S. personnel who are alleged to have used torture and illegally imprisoned others in Afghanistan.
In her request, Bensouda said there was reason to believe U.S. military and intelligence agencies “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.” The locations included secret CIA facilities in Poland, Romania and Lithuania.
Bolton has campaigned for decades to neutralize the ICC, which he regards as a threat because of the possibility it might someday prosecute an American citizen. The Trump administration has repeatedly sought to undermine or withdrawn from international organizations it considers to be a threat to U.S. sovereignty or the administration's "America First" policies.
In April 2019, the Trump administration made good on its threat to block the ICC from investigating Americans, revoking a U.S. travel visa for Bensouda.
The U.S. State Department said Bensouda cannot visit the United States for any reason other than for “official U.N. purposes” because of a need to “protect our people from unjust investigation and prosecution by the international criminal court.” It also said visas would be denied to ICC officials who were “directly responsible for any ICC effort to conduct a formal investigation of U.S. or allied personnel without the relevant country’s consent.”
Located at The Hague, Netherlands, the ICC operates outside the United Nations system. It is the world’s first permanent international criminal court with jurisdiction to prosecute people for the most serious crimes under international law — crimes against humanity, genocide, war crimes and aggression.
It is meant to serve as a court of last resort when nations are unwilling or unable to dispense justice themselves. The U.N. Security Council, the world body's most powerful arm, can refer a matter to the ICC's prosecutors for investigation, even in a country that does not recognize its jurisdiction.
The first time that happened was in 2005, when the council told the ICC to investigate claims of genocide, war crimes and crimes against humanity in Sudan’s Darfur region since July 2002. But the court has no police force and cannot enforce orders without cooperation from governments.
Last November, the ICC authorized Bensouda to investigate Myanmar's alleged crimes against humanity in what U.N. investigators call a military-led genocide of the nation's Rohingya Muslim minority. Myanmar's government denies the allegations and rejects cooperation with the court.
'One step closer' to justice
The ICC appeals chamber's decision came less than a week after the United States and the Taliban signed an agreement calling for the full withdrawal of American forces from Afghanistan within 14 months and for the Taliban to sever ties with international terrorist groups such as Al Qaeda. About 13,000 U.S. troops are still in Afghanistan, which has become America's longest war.The United States, which does not recognize the court's jurisdiction, denounced the ICC decision to authorize an investigation in Afghanistan, where U.S.-led forces have fought since they entered the country in 2001 in the wake of the 9/11 al Qaeda attacks on the United States. U.S. forces overthrew the Taliban government, which protected al Qaeda leader Osama bin Laden. Afghanistan also objected to the investigation, though it is one of the ICC's 123 member nations.
U.S. Secretary of State Mike Pompeo described the ICC appeals chamber's decision as "a truly breathtaking action by an unaccountable political institution, masquerading as a legal body.""It is all the more reckless for this ruling to come just days after the United States signed a historic peace deal on Afghanistan — the best chance for peace in a generation," he said in a statement. "This is yet another reminder of what happens when multilateral bodies lack oversight and responsible leadership, and become instead a vehicle for political vendettas." The ICC has issued 34 arrest warrants and heard 27 cases since its founding nearly 18 years ago, with some cases having more than suspect, according to the court's tallies. Sixteen people have been detained in the ICC's detention center and appeared before the court; 15 others remain at large. Charges were dropped against three people who died.
ICC judges have issued nine summonses to appear. There have been four acquittals and eight convictions in the court's history — all of them directed against Africans suspected of war crimes.
Bensouda applauded the ICC appeals chamber's decision to authorize an investigation in Afghanistan, calling it an important day for the cause of international criminal justice, both in Afghanistan and, more broadly, around the world.
"The investigation will be independent, impartial and objective. This is what the office is legally mandated to do, and it is what we are committed to doing," Bensouda said in a statement.
"My office will follow the evidence. There are no timelines for the duration of the investigation. Each investigation at the ICC is unique and has its own complexities," she said. "The many victims of atrocious crimes committed in the context of the conflict in Afghanistan deserve to finally have justice. Today, they are one step closer to that coveted outcome."
Amnesty International also hailed the ICC decision to allow the investigation to proceed in Afghanistan.
“This is an historic moment where the International Criminal Court has reversed a terrible mistake and decided to stand by the victims of war crimes and crimes against humanity committed by all sides to the conflict in Afghanistan,” Solomon Sacco, Amnesty International’s head of international justice, said in a statement.
“The ICC," he said, "represents the first true hope of justice for the victims of conflict, who have been shamefully ignored for years, including in the recent peace agreement that has nothing to say about the crimes committed against them."
