Developments
In 2017, International Criminal Court prosecutor Fatou Bensouda called for an investigation into war crimes and crimes against humanity that had likely been committed in Afghanistan. The probe focuses on a variety of groups and, among them, the U.S. military and Central Intelligence Agency (CIA).
In 2019, the U.S. revoked prosecutor Bensouda’s visa in retaliation. Later that year, it seemed as if U.S. officials’ protestations would be awarded when an ICC panel of judges rejected Bensouda’s request, citing that while the investigation request
“is within the court’s jurisdiction and the crimes are of sufficient gravity for it to consider the case… it was ultimately rejecting the request because “the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited.”
Bensouda, supported by well-respected human rights organizations such as Human Right Watch (HRW) and Amnesty International, appealed the decision.
On March 5, 2020, the ICC Appeals Chamber ruled in Bensouda’s favor and gave her the authorization to investigate any war crimes and crimes against humanity that were committed in Afghanistan.
The prosecution stated,
“There is reasonable basis to believe that, since May 2003, members of the US armed forces and the CIA have committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence pursuant to a policy approved by US authorities.”
American Response
The appeal panel’s decision has stoked anger from the U.S. government and Trump administration, with outgoing Secretary of State Mike Pompeo declaring it a “breathtaking action by an unaccountable political institution, masquerading as a legal body.”
The U.S. government under Pompeo and President Donald J. Trump has been openly hostile towards the ICC, despite previous administrations remaining friendly even when in disagreement. Trump used an executive order to retaliate against the ICC, giving him the ability to freeze the bank accounts of any ICC staff at a whim and deny ICC staff travel to the US at any moment. The executive order is what Pompeo used to sanction prosecutor Bensouda and her top aide.
Pompeo states that “we have long believed and stated that justice is most effective when it is delivered at the local level”, a message that is undercut by Trump’s pardoning of five convicted war criminals. As those five were already among the few convicted by the US out of numerous alleged incidents in Iraq and Afghanistan, Pompeo’s words are likely to mean little to the ICC.
ICC Jurisdiction
The ICC was founded in 2002, created by the Rome Statute, and since then The Hague has prosecuted at least 45 prominent human rights abusers and war criminals, usually to U.S. applause.
Despite the U.S. being heavily involved in the creation on the Rome Statute, President Bill Clinton decided in 1998 to not ratify it, fearing that the U.S. would be subject to an investigation much like this. Despite this, the U.S. has played an active role in supporting most prosecutions as a United Nations Security Council member.
While not being a member of the ICC allows the U.S. leeway, the ICC has limited jurisdiction when a non-ICC member state commits war crimes, crimes against humanity, or genocide within the territory of an ICC member state. Since Afghanistan is an ICC member, U.S. citizens may not be as exempt as Pompeo has claimed.
The ICC has reminded the U.S. government that the simplest option is to investigate its own war crimes but the U.S. has refused to even acknowledge that war crimes may have been committed.
As a result, prosecutor Bensouda is sure to continue her mission of bringing all possible war criminals to justice, no matter their nationality.
