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ICC gears up for landmark Afghanistan decision

byJournalists For Justice
March 3, 2020
in ICC Cases, ICTY
Reading Time: 2 mins read
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ICC prosecutor granted leave to appeal the decision rejecting Afghanistan investigation

Members of the The US Army's Road Clearance Package along with Blackhawk Company, 2nd Battalion 87th Infantry Regiment, based out of Fort Drum, NY, search for IED's in the Nerkh Valley in Afghanistan's Wardak province Thursday April 7, 2009. The 2-87, part of the 3rd Combat Brigade, 10th Mountain Division, were originally slated to deploy to Iraq but were re-routed to Afghanistan. They are the U.S. forces' first major push into the Wardak region that saw a heavy anti-coalition resurgence last year marking the worst since the war began in 2001 for deaths among NATO forces. In an attempt to secure Kabul from falling back into the hands of the Taliban, the US bolstered the number of forces with the deployment of the 3/10 in nearby Wardak Province, less than 30 minutes from the capital, from approximately 150 troops last year to 1500 this year. The brigade is the first substantial illustration of the U.S.'s new military focus in Afghanistan.

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Afghanistan on Thursday that will be crucial for the future reputation of the court.

A Pre-Trial Chamber (PTC) of the ICC declined in April 2019 to permit the opening of an investigation into the situation in Afghanistan “in the interests of justice”. Prosecutor Fatou Bensouda appealed that decision; her appeal was supported by lawyers representing thousands of victims.

The PTC judges held that the chances of success in the Afghanistan investigation would be scarce because the United States of America would not cooperate.

That fed the old cliché of “the European court for Africa” again, that had been used by African critics of the ICC for years. The court had been rejecting that cliché, saying it is impartial when it has jurisdiction. But in April 2019 ICC judges were seen to shy away from an investigation when white men could end up in the dock for the first time.

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Critics of the PTC decision said that international criminal justice needs patience and perseverance. General Ratko Mladić, the military commander responsible for the only genocide in Europe after World War II, ended up in the dock of the ICTY only after almost 16 years on the UN Yugoslav tribunal’s wanted list.

Darfuri war crimes victims may finally feel the satisfaction of seeing former Sudanese president Omar al-Bashir having to appear before ICC judges – the first arrest warrant against the then strongman in Khartoum was issued in March 2009. 

Legal experts argue that the PTC applied a wrong legal test. The Rome Statute says that judges can quash a decision by the Prosecutor NOT to investigate in the interests of justice. But in the Afghanistan situation it is the other way round. This consideration may be the best chance for Bensouda to win on Thursday.

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