By Susan Kendi
The International Criminal Court judges will in due course give a
landmark ruling on the prosecutor’s request to open an investigation into the
alleged crimes committed in the conflict between the United States (U.S.)
troops, Afghan forces and the Taliban in Afghanistan.
The decision is a real test to gauge whether the Court will stand
up to political meddling and rule in accordance with the Rome Statute.
The Afghanistan government has requested the court to stay away
and allow the country to investigate and prosecute cases, emphasizing that an International
Crimes Division has been established and national laws
reformed to ensure that cases of torture are addressed, and justice is served.
In their submission, the representatives of the country stated
that an ICC
investigation is a “waste of resources” which would be redirected in support of
the existing national judicial system. They added that an investigation would “paralyze national and international efforts to
forge peace” in the country.
capability of Afghanistan to investigate and prosecute past and ongoing
atrocities committed is questionable.
attacks against judges, prosecutors and police have continued and worsened in
the country proving that the possibility of an investigation in the country is
close to impossible.
of thousands have been killed, many wounded and maimed and others displaced in
in the 40 years of conflict and violence in Afghanistan.
now, only low-level perpetrators have been tried and the promises told to the
Afghan victims of “peace first then justice” remain futile.
from its volatile nature, the Afghanistan national judicial systems are prone
to interference by the government, the Taliban and other outside forces.
“The reality is that conflict has turned Afghanistan into a
breeding ground for fundamentalist and extremist groups and a battleground for
regional and international powers… The reality is that there are no discussions
concerning justice and accountability as part of the United States negotiations
with the Taliban,” said a lawyer of the Afghanistan Human Rights Organization
In December 2019, the Washington Post acquired 2,000 pages of
confidential United States government documents revealing that senior U.S.
officials lied about progress in the Afghanistan war and analyzing the root
failures of the Afghanistan.
United States invaded Afghanistan after the September 11,2001 attacks. The move
aimed at expelling the Al-Qaeda and denying them a safe base of operations by
removing the Taliban from power.
to the defence department figures, the counterterrorism operations in
Afghanistan has cost the lives of 2,300 U.S. soldiers and left 20,589
On April 2019, the Pre-Trial chamber II unanimously rejected the
prosecutor’s request to authorise an investigation in the territory of
Afghanistan stating that an investigation at that stage would not serve the
“interests of justice.”
The Court’s decision has not stopped United States efforts to
paralyze any move that might see American forces in Afghanistan implicated in
the alleged crimes committed since May 1, 2003 to 2004.
Afghanistan is a state party to the Rome Statute whereas the
United States of America is a signatory but has not ratified it since 2000.This
means that the Rome Statute is not legally binding to the U.S.
One of U.S president Donald Trump’s lawyers, Jay Sekulow alongside
other lawyers from the American Center for Law and Justice allowed as friends
of the court defended the U.S military efforts and contested Fatou Bensouda’s
“Our troops face an insidious new threat as the International
Criminal Court’s prosecutor is seeking jurisdiction to prosecute our soldiers
on war crimes after they have risked their lives fighting the war on terror,”
On April 5,2019 the United States government revoked Fatou
Bensouda’s entry visa into the country and 12 days later the Pre-Trial chamber
II unanimously rejected her request to authorise an investigation in
Two years ago, the United States national Security adviser, John
Bolton vehemently threatened ICC judges and prosecutors during his speech to
the Federalist society in Washington DC, stating that they would face
individual criminal charges, arrests and economic sanctions if they dared
charge any American service member.
“If the Court comes after us, Israel or other US allies, we will
not sit quietly…We will ban its [ICC] judges and prosecutors from entering the
United States. We will sanction their funds in the US financial system, and we
will prosecute them in the US criminal system. We will do the same for any
company or state that assists an ICC investigation of Americans,” John Bolton
“We will let the ICC die on its own. After all, for all intents
and purposes, the ICC is already dead to us,” he added.
The world is watching the politics play out in the Afghanistan
situation at a distance and for International law experts, opening an
investigation into the United States Torture program and alleged crimes
committed by the U.S. forces will show that no one is above the law and brush
off critics that have termed the court as a neo-colonial and accused it of
targeting African countries.