Will the ICC bow to the political pressure in Afghanistan?

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.

The capability of Afghanistan to investigate and prosecute past and ongoing atrocities committed is questionable.

The 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.

Hundreds of thousands have been killed, many wounded and maimed and others displaced in in the 40 years of conflict and violence in Afghanistan.

Till now, only low-level perpetrators have been tried and the promises told to the Afghan victims of “peace first then justice” remain futile.

Apart 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 (AHRO).

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.

The 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.

According to the defence department figures, the counterterrorism operations in Afghanistan has cost the lives of 2,300 U.S. soldiers and left 20,589 wounded. 

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 request.

“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,” said Sekulow.

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 Afghanistan.

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 said

“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.