International Criminal Court authorizes the opening of an investigation into alleged War Crimes committed by individuals in Afghan War
ICC: Today, 5 March 2020, the Appeals Chamber of the International Criminal Court (‘ICC’ or ‘Court’) decided unanimously to authorise the Prosecutor to commence an investigation into alleged crimes under the jurisdiction of the Court in relation to the situation in the Islamic Republic of Afghanistan. The Appeals Chamber’s judgment amended the decision of Pre-Trial Chamber II of 12 April 2019, which had rejected the Prosecutor’s request for authorisation of an investigation of 20 November 2017 and had found that the commencement of an investigation would not be in the interests of justice. The Prosecutor had filed an appeal against that decision. Judge Piotr Hofmański, the presiding judge in this appeal, read a summary of the Appeals Chamber’s judgment in open court.
Having considered the Prosecutor’s grounds of appeal against the Pre-Trial Chamber’s decision, as well as the observations and submissions of the Islamic Republic of Afghanistan, representatives of victims and other participants, the Appeals Chamber found that the Pre-Trial Chamber erred in considering the ‘interests of justice factor’ when examining the Prosecutor’s request for authorisation to open an investigation. In the Appeals Chamber’s view, the Pre-Trial Chamber should have addressed only whether there was a reasonable factual basis for the Prosecutor to proceed with an investigation, in the sense of whether crimes have been committed, and whether the potential case(s) arising from such investigation would appear to fall within the Court’s jurisdiction. Noting that the Pre-Trial Chamber’s decision contained all the necessary factual findings and had confirmed that there is a reasonable basis to consider that crimes within the ICC jurisdiction have been committed in Afghanistan, the Appeals Chamber decided to authorise the opening of an investigation itself, rather than to send the matter back to the Pre-Trial Chamber for a new decision.
The Appeals Chamber found that the Prosecutor is authorised to investigate, within the parameters identified in the Prosecutor’s request of 20 November 2017, the crimes alleged to have been committed on the territory of Afghanistan since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation in Afghanistan and were committed on the territory of other States Parties to the Rome Statute since 1 July 2002.
The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.
Judge Ibáñez Carranza filed a separate opinion on the interpretation of article 15 and its relationship with article 53 of the Rome Statute.
U.S. Rejects Top Court’s ‘Reckless’ Decision To Back Afghan War Crimes Probe RFE
U.S. Secretary of State Mike Pompeo has denounced as “reckless” a ruling by the International Criminal Court (ICC) that an investigation into alleged war crimes committed in Afghanistan could go ahead.
“This is a truly breathtaking action by an unaccountable political institution, masquerading as a legal body,” Pompeo said on March 5 following the ICC judges’ decision to overturn on appeal a previous decision to block the probe into crimes allegedly committed by the Taliban, Afghan security forces, and the U.S. military and intelligence agencies.
The ruling by the ICC’s Appeals Chamber in The Hague came days after the United States and the Taliban signed a deal aimed at putting an end to the 18-year war in Afghanistan.
“It is all the more reckless for this ruling to come just days after the United States signed a historic peace deal on Afghanistan — the best chance for peace in a generation,” Pompeo said in his statement.
He said the United States, which is not a party to the ICC, will take “all necessary measures to protect our citizens from this renegade, so-called court.”
Afghanistan is a signatory of the ICC but officials have expressed opposition to the investigation.
Human rights groups welcomed the Appeals Chamber’s decision, with Amnesty International saying: “This is an historic moment where the International Criminal Court has reversed a terrible mistake and decided to stand by the victims of war crimes and crimes against humanity committed by all sides to the conflict in Afghanistan.”
In November 2017, ICC Prosecutor Fatou Bensouda asked judges to initiate an investigation into alleged war crimes and crimes against humanity committed in Afghanistan since May 2003.
But in April 2019, an ICC pretrial chamber rejected the inquiry as not being in the “interests of justice” because it would likely fail due to lack of cooperation.
U.S. President Donald Trump welcomed this ruling, which was condemned by victims and rights groups, calling it “a major international victory…for the rule of law.”
Judge Piotr Hofmanski, president of the ICC’s Appeals Chamber, said in rendering the March 5 judgment that the pretrial chamber “erred in deciding that investigation into the situation in Afghanistan in this stage would not serve the interest of justice.”
The Appeals Chamber “considers it appropriate to amend the appeal decision to the effect that the prosecutor is authorized to commence an investigation,” Hofmanski said.
After the announcement, Solomon Sacco of Amnesty International said the ICC “represents the first true hope of justice for the victims of conflict, who have been shamefully ignored for years.”
Patricia Gossman, associate Asia director at Human Rights Watch, said: “Afghans who are skeptical about whether the U.S.-Taliban agreement and planned intra-Afghan peace talks can deliver a better future, now have reason to believe that justice might not be squandered in the process.”
Washington has said it would revoke or deny visas to ICC staff seeking to investigate the allegations of abuses.
The United States is among dozens of countries that have not ratified the Rome treaty that established the ICC in 2002.
U.S. forces and other foreign troops intervened in Afghanistan following the September 11, 2001, attacks in the United States and overthrew the Taliban government.
There are roughly 13,000 U.S. troops in the country, as well as European forces participating in the NATO-led Resolute Support mission.
More than 32,000 civilians have been killed in the conflict, according to the United Nations.
International Criminal Court Allows Afghanistan War Crimes Probe
By Ayaz Gul weighs in
The International Criminal Court ICC ruled Thursday that an investigation can go ahead into war crimes and crimes against humanity allegedly committed by the United States and other warring parties to the conflict in Afghanistan
The global court in the Hague overturned an April 2019 rejection of the probe.
“The Appeals Chamber considers it appropriate to amend the appealed decision to the effect that the prosecutor is authorized to commence an investigation into alleged crimes committed on the territory of Afghanistan since May 1, 2003,” Presiding Judge Piotr Hofmanski said.
The ruling will allow ICC Prosecutor Fatou Bensouda to examine the actions of U.S. armed forces and members of the CIA, the Taliban insurgency, Afghan government security forces and other armed groups operating in Afghanistan.
Bensouda has been seeking a formal investigation into the alleged crimes since 2017.
Washington is not a signatory of the ICC and disputes its authority over American citizens. Afghanistan, however, is a member of the global court.
U.S. Secretary of State Mike Pompeo said last year that the Trump administration would revoke or deny visas to ICC staff seeking to investigate alleged war crimes and other abuses committed by U.S. forces in Afghanistan or elsewhere.
The Afghan government has also opposed the investigation.
Thursday’s ICC ruling came just days after the United States and the Taliban signed a landmark agreement to try to bring an end to the Afghan war, now in its 19th year.
Rights groups welcome ruling
Afghan and global rights groups hailed the ICC for upholding the rights of victims to accountability, and paving the way for the United States to be held to account for the first time for its actions.
“ICC Appeals Chamber’s decision to green-light an investigation of brutal crimes in Afghanistan despite extreme pressure reaffirms the court’s essential role for victims when all other doors to justice are closed,” noted Param-Preet Singh, associate international justice director at Human Rights Watch.
The Afghanistan Independent Human Rights Commission (AIHRC) welcomed Thursday’s decision as an “important step for justice in Afghanistan.
”Today, the International Criminal Court breathed new life into the mantra that ‘no one is above the law’ and restored some hope that justice can be available — and applied — to all,” said Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights (CCR) and ICC Victims Legal Representative.
“In authorizing this critical and much-delayed investigation into crimes in and related to Afghanistan, the Court made clear that political interference in judicial proceedings will not be tolerated,” noted Gallagher.
A 2016 ICC report focusing on Afghan hostilities concluded there was a reasonable basis to believe that the U.S. military, Afghan government and the Taliban committed war crimes.
Prosecutor Bensouda alleged while arguing before the judges last year that members of the U.S. military and intelligence agencies “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period.”
She said the Taliban and other militant groups have killed thousands of Afghan civilians since 2009 in attacks, including targeted killings. The report blamed Afghan security forces for allegedly torturing prisoners at government detention centers.
At a hearing before the Appellate Chamber in December, the Afghan government said it objected to the investigation and has set up a special unit to investigate war crimes.
There was no official U.S. delegation at the hearing, but President Donald Trump’s personal lawyer, Jay Sekulow, appeared on behalf of the European branch of the American Center for Law and Justice and told judges that the U.S. position wouldn’t change.
He told appeals judges that “it is not in the interests of justice to waste the court’s resources while ignoring the reality of principled non-cooperation.”