The ICC Prosecutor is right on Afghanistan: The decision of the International Criminal Court’s Prosecutor to request the commencement of an investigation into the conflict in Afghanistan is a welcome step

Written by Jefferi Hamzah Sendut

On 3 November, International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda announced that she would be seeking authorisation from the Court’s Pre-Trial Chamber judges to begin a formal investigation of whether war crimes and crimes against humanity were committed during the conflict in Afghanistan which began in December 2001. The requested investigation would focus on allegations of crimes committed by all sides in the conflict from May 2003 within Afghanistan itself, and from July 2002 in other state parties to the Rome Statute, the ICC’s founding treaty.

This is a bold move which comes after a decade long preliminary examination into the situation to ascertain whether sufficient evidence existed to support the ICC’s involvement and initiation of an investigation. That Ms Bensouda has been able to decide that such evidence  is present is a credit to ICC efforts in the face of undoubtedly challenging circumstances on the ground. Most importantly, the authorisation of an investigation would lead to the identification of individual suspects, moving closer to ensuring the Afghan people are not deprived of their right to see those responsible for atrocities held accountable.

Should authorisation be received as per the prescribed legal criteria, the Prosecutor must not waver in undertaking an ‘impartial and objective’ investigation, the ‘ultimate focus [of which is] upon those most responsible for the most serious crimes allegedly committed’. Where Afghanistan’s national legal system is found to be inadequately robust, the Prosecutor should not hesitate to pursue those with blood on their hands, whether within the ranks of the Taliban or Afghanistan’s national security forces.

The ICC should also take on the elephant in the courtroom: the potential for the prosecution in the Court of United States nationals for the commission of heinous crimes. The US’ ambivalence (and at times outright hostility) towards the ICC is well known. The US remains a non-party to the Rome Statute, and the Bush administration conducted a campaign to actively marginalise the Court. While the Obama presidency saw a greater willingness for cooperation, the White House continued to rely on Bush-era agreements concluded bilaterally with other countries to shield US forces from ICC prosecution, for instance relating to US troops in Mali. No points for guessing whether the overtly nationalist, hawkish Trump administration will be more friendly to the latest developments.

It is worthwhile to note that the ICC has already indicated that its findings show there is a ‘reasonable basis’ to conclude that ‘US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity’. Similar findings exist in connection to 27 US Central Intelligence Agency detainees interrogated in Afghanistan or in Poland, Romania, and Lithuania after being subject to extraordinary rendition to those countries. All four of these countries are state parties to the Rome Statute, hence giving the ICC jurisdiction over any relevant crimes committed in their territories, even by US nationals. If the requisite evidence exists, indictments should be brought.

Throughout its lifespan, the ICC has had to decide how it should conduct itself in a world of realpolitik. Pragmatism has played a role in the cases it has chosen to pursue, especially in its first years–for international institutions from the United Nations to the ICC itself, the support of state members is absolutely vital. This is especially the case in the field of international criminal justice. For all the lofty moral precepts and the significance of human rights, the ICC still needs countries to arrest those for whom indictments are issued. Justice will not be done unless the Court gets national governments on side, and the unfortunate reality is that this has meant treading carefully at times. However, there comes a point when pragmatism cannot be allowed to trump principle. The ICC would be doing itself no favours kowtowing to the world’s big powers. Indeed, such a course would run contrary to the very reason that the Court was established: to ensure that regardless of the flag they stand under, nobody with such disregard for human dignity and decency to be able to subject others to unspeakable suffering enjoys impunity. It is encouraging to see that Ms Bensouda remains conscious of that aim.
These are trying times for the ICC. It recently saw the first withdrawal from the Rome Statute in Burundi, and its Assembly of State Parties is to decide on the activation of jurisdiction to prosecute the controversial crime of aggression in December. But the Court must persist, and it must be brave. Anything less would be a disservice to those still not treated as they should be: with basic dignity.