ICC accused of ‘political considerations’ over Afghanistan

BY JOSEPHINE KUUBAIBONG - Apr 17, 2019 at 11:04am 100

The decision by judges at the Pre-Trial Chamber of the International Criminal Court, in the Hague, to reject an investigation into alleged war crimes and crimes against humanity in Afghanistan has been condemned by an independent pressure group.

“Political considerations have overridden legal precedents and the concern of victims in Afghanistan,” the Coalition for the International Criminal Court (CICC) said in a statement on Monday.

The CICC is a global network of civil society organisations in 150 countries “fighting for justice for victims of genocide, war crimes, crimes against humanity, and the crime of aggression through national courts and the ICC”.

Although the three judges acknowledged that crimes were committed in Afghanistan, they said an investigation “would not serve the interests of justice”.

In November 2017, ICC Prosecutor Fatou Bensouda filed a request to open an investigation into the crimes committed by US forces, the Taliban, the Afghan army and other fighting groups in the country since May 1, 2003.

But it was only the US that came out strongly against the prosecutor’s move, with National Security Adviser John Bolton warning last September that America would resist any attempt by the ICC to undertake a formal investigation of alleged war crimes committed by American soldiers during the war in Afghanistan.

“The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court,” he had threatened.

Last month, US Secretary of State Mike Pompeo raised the stakes when he announced that Washington had revoked Mrs Bensouda’s US visa and would deny entry to ICC staff if the investigation went ahead.

The CICC said the “interests of justice” arguments by the judges “rings hollow”, pointing out that “respecting and upholding the independence of the judges and the Prosecutor was fundamental to the mandate” of the non-governmental organisation.

“Our global membership is expressing shock that the ICC did not authorise the request, and is stating that the arguments against authorisation fly in the face of the founding tenets of the Court,” said William R. Pace, the Convenor.

He referred to the Preamble of the Rome Statute which calls for “ending impunity and preventing mass atrocities with a view to achieving peace, security and the well-being of the people”.

Mr Pace said CICC members believed that there should be an appeal against the Pre-Trial Chamber’s decision and that it should be modified.

According to UN figures, since 2009 the conflict in Afghanistan had led to the deaths of 24,841 civilians and injured 5,347, with 2016 proving the deadliest yet for children.

“We are extremely disappointed,” said Guissou Jahangiri, founding member of the Transitional Justice Coordination Group (TJCG) in Afghanistan.

“The ICC judges speak of pressure and challenges, but victims in Afghanistan do not have to be told that seeking justice is a challenge and that investigation would only be the beginning.

“It is concerning that a court of last resort, one that is supposed to be a guarantor of independent justice, rejects the opening of an investigation into the gravest crimes in Afghanistan.

“All these parties involved in the conflict in Afghanistan: the government, the Taliban, the US – all have committed crimes and should be investigated,” she added.

Another member of the TJCG, Horia Mosadiq, said: “As an Afghan and the family of a victim of war, I am shocked and disappointed to hear that [the] ICC rejected the request to open an investigation into Afghanistan.

“The ICC's judges’ decision is simply a miscarriage of justice and a blow to the demand of millions of victims of war for justice in Afghanistan.”

But the judges had contended: “Subsequent changes within the relevant political landscape both in Afghanistan and in key states (both parties and non-parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future.”

They also said funding of an investigation would have been a major constraint.

“In the foreseeable absence of additional resources for the coming years in the Court's budget, authorising the investigation would therefore result in the prosecution having to reallocate its financial and human resources; in light of the limited amount of such resources, this will go to the detriment of other scenarios,” the judges said in their ruling.

The CICC is however not enthused, saying “that these ICC judges appear to be deciding the future of investigations and cases based apparently on the policies of the small minority of states pushing for ‘zero nominal growth’ budgets for the ICC - or similar budget-cutting proposals - despite obvious needs for an increase in Court funding given its far-reaching mandate, is extremely worrying.”

A statement from the Office of the Prosecutor noted that the judges “are satisfied that there is a reasonable basis to believe that crimes under the jurisdiction of the International Criminal Court have been committed in Afghanistan, and that the jurisdictional requirements of gravity and admissibility have been met”.

It added: “The Pre-Trial Chamber then refused to authorise an investigation on its assessment of the interests of justice.

“The Office will further analyse the decision and its implications, and consider all available legal remedies.”

Ms Jahangiri of the TJCG does not believe that things will change for victims.

“Today's decision is not based on the evaluation of legal and factual evidence, but on political and practical considerations of the Court itself, seemingly not even considering the legal and factual reality of victims in Afghanistan.

“The lesson we draw from this is that apparently those who are powerful enough can pressure this international court of last resort into handing them impunity.”

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