Happenings in The Hague: An explainer on the recent ICC decision on Afghanistan

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It seems the world of international justice was overjoyed on March 5, 2020. What happened?

A lot! The Appeals Chamber of the International Criminal Court (ICC) authorised the Prosecutor to investigate the crimes against humanity and war crimes allegedly committed in Afghanistan since 1 May 2003, by members of Afghan and foreign forces, including the Central Intelligence Agency (CIA) and US military forces, and by Afghan anti-government armed groups such as the Taliban and other affiliated armed groups.

The Appeals judges also decided that the Office of the Prosecutor of the ICC is not limited to the territory of Afghanistan in its investigation, and that it can investigate crimes linked to the Afghanistan conflict that have been committed since 1 July 2002 on the territory of other States Parties including Lithuania, Poland and Romania. This refers to the crimes committed by the CIA in so-called “black sites”, under what is known as the “CIA torture programme”.

This investigation will begin more than two years after the Prosecutor requested authorisation to start the investigation (to know more about this, see our previous Q&A), and after it was rejected by a Pre-Trial Chamber of the Court last year. On this, see the next question.

This is a monumental decision !

Ok, but still why is this so significant?

This decision has been celebrated for various reasons.

It restored – to an extent – the Court’s credibility and confidence in its independence. In rendering this decision, the judges focused on the law and protected the Court from political pressure.

You may remember that this investigation was initially rejected by another Chamber of the Court (the Pre-Trial Chamber) which decided, on 12 April 2019, that it was not in the “interest of justice” to proceed with such investigation. This was a big blow for victims who saw the Court’s investigation as their last chance to get a measure of justice, and, moreover, for the wider fight against impunity. The Chamber said that lack of cooperation from relevant States, the time elapsed since the crimes were allegedly committed, and other obstacles would prevent the Prosecutor from carrying out successful investigations and cases.

This decision was highly criticised including by civil society for being driven by political and practical considerations rather than the Court’s mandate to deliver justice and accountability. The rejection also weakened the Court, because it made it appear as a very timid Court that had succumbed to external political pressure.

The Appeals Chamber rejected this reasoning, and called it “speculative” and “cursory.” FIDH agrees. In any case, who said the Court’s work would ever be an easy one?

What does this mean for victims in Afghanistan?

This is tricky: there are hundreds of thousands of victims tied to the Afghanistan situation and it’s impossible to know what the March 5, 2020 decision means for the overwhelming majority of them. We can be guided by submissions made on behalf of Afghan and US torture victims who sought to overturn the refusal to open an investigation. We can also be guided by the fact that tens of thousands of victims participated in the proceedings to support the Prosecutor’s request to open an investigation on the situation in Afghanistan. At a minimum, the March 5, 2020 decision gives victims at least some hope that their quest for justice is not over. As we like to say: the fight continues !

It was also encouraging to see that the Appeals Chamber gave adequate weight to the submissions it received on behalf of victims, as the same was not done when the Prosecutor’s request for an investigation was rejected in April 2019.

On a broader level, the decision means that the judges agreed with the Prosecutor that there is an accountability gap that needs to be filled. By authorising this investigation, the Court will take steps that are much needed for establishing truth and justice.

Wait, the truth ? Does it mean perpetrators of these crimes will be held accountable, and victims will receive justice ?

Once more, there is no concrete answer. The judges only authorised the investigation. Carrying it out will be far from easy, especially because some States like the US, and even Afghanistan itself, are vehemently opposed to the investigation.

The Court will only look into the responsibility of a limited number of high-level people for crimes against humanity and war crimes. There needs to be a much broader effort in Afghanistan, the US, and elsewhere to investigate, prosecute and provide redress to victims. And, even in relation to the few individuals that the Court will seek to hold accountable, it’s important to be realistic: we are unlikely to see arrests and convictions anytime soon. These things, unfortunately, take a long time, particularly when done far from where the crimes occurred. This is why support for the Court (particularly from States Parties) is crucial so that the Prosecution can carry out its investigation effectively.

Doesn’t this sound more like managing expectations, not raising hopes?

Yes, but it should not be about this. It should be about understanding what victims want, and how best this can be addressed. So it’s more about meeting expectations. The ICC and the Appeal Chamber’s decision play a small, but important part in this.

So it’s understandable that victims and supporters of the Court may have regained their faith in the Court. But have States too?

This decision should also be good news for the States Parties – the countries that founded the Court – which understood the necessity to create an international body capable of fighting against impunity by ensuring that those who bear the highest responsibility for the most horrendous crimes be prosecuted and convicted for their acts. The Appeals Chamber’s Afghanistan decision is one of the most significant results of the ICC’s work.

States Parties should seize this key moment to show their support for the Court by cooperating with the Office of the Prosecutor in its investigation and defending the Court against any attacks and reprisals, especially from the US.

What about torture allegations against US personnel and the crimes committed in other countries, such as Lithuania, Romania, and Poland? How does this come in and what does it mean?

Remember, we mentioned that the Prosecutor has now the authority to investigate crimes, including torture, committed in “black sites” ? These black sites were secret detention facilities operating in various countries where the CIA detained what they considered to be “unlawful enemy combatants,” subjecting them to crimes that included various forms of torture, ill-treatment, outrages upon personal dignity, rape, and other forms of sexual violence.

This is part of what has been called the “CIA torture programme” – a significant element of the US’ fight against terrorism. This is so big, that we cannot get into details here. But FIDH, the Center for Constitutional Rights, and many others have done excellent work on this, so you should check it out.

By authorising the Prosecutor to investigate the crimes committed under the CIA torture programme, the Appeals Chamber allows the Court to fully exercise its mandate and give access to justice for victims of the most serious crimes. It is an unprecedented decision which can help fill the accountability gap for crimes committed by US authorities and their allies. Most of these victims have not had any chance to access justice.

Have we heard from the US administration? What do you think they make of this?

Yes, as expected, the US administration didn’t wait long before making its statement. Secretary of State Mike Pompeo described the Appeals Chamber’s decision as “a truly breath-taking action by an unaccountable political institution masquerading as a legal body.” Worryingly, Mr. Pompeo added that the US would take “all necessary measures to protect” US citizens from “this renegade, unlawful, so-called court.”

Although the attacks and measures taken by the US against the Court are now well-known, the US is not the only country that has reacted negatively to the Court’s actions. When States, Parties to the ICC or not, fear that their agents and military forces might be investigated for serious crimes and brought to the ICC, they tend to react by attempting to undermine the credibility of the Court. In the past, other States under examination by the Prosecutor have reacted like this. Earlier this year, Israeli Prime Minister Benjamin Netanyahu called for sanctions against the Court and its personnel. In 2018, the Philippine government announced that the country would withdraw from the Rome Statute (the treaty that established the ICC).

By acting like bullies, the US and other States hope to escape accountability, to make it so difficult for the Court to exercise its mandate that the Prosecutor might give up. This is why cooperation from States Parties and others is so important.

Do you think it is likely that the Prosecutor will actually investigate allegations of US torture? After all, the US seems very determined to prevent this from happening.

Investigating crimes that were allegedly committed by US forces and the CIA in Afghanistan and in black sites will be a long road strewn with pitfalls. It is very likely that all stakeholders involved in such investigations, particularly the Office of the Prosecutor, will continually face strong opposition from the US - and possibly others. Many States, including Afghanistan itself, are opposed to this investigation.

Despite these challenges, an investigation into these allegations – including those of US torture – will send a clear message to the international community that nobody is above the law. It will be a powerful call against impunity – potentially the most powerful call ever made by the ICC to date. The Prosecutor Fatou Bensouda seems determined to accomplish her mandate and to not fall under the pressure of the US. After the decision, she stated her intent to “conduct a diligent and thorough investigation into this Situation”, an investigation which “will be independent, impartial and objective”. We can only hope that this commitment is carried on by the next Prosecutor who will be elected in December 2020!

Forgot to ask: What is the International Criminal Court?

Good question! The International Criminal Court is the first permanent, independent Court, based in The Hague (the Netherlands), which seeks to prosecute and convict those who bear the highest responsibility for the most serious crimes (crimes against humanity, war crimes, and genocide). The Statute of the Court was adopted in 1998 in Rome (the “Rome Statute”), and the Court itself was established in 2002. The Court has jurisdiction over the territories of the “States Parties”, that is, countries that have officially ratified its statute (so far, 123), or over nationals of these States Parties. The Court can also investigate and prosecute nationals of non-State parties who commit crimes under its jurisdiction within the territories of State parties. There are other instances where the Court can exercise jurisdiction, but we will not get into details.

In some situations, the Court’s operations have pushed against impunity, allowed victims to have access to justice and reparations, and contributed to triggering national authorities’ efforts to try grave crimes at home. In other situations, the Court’s contribution has been slightly more limited.

Going from vision to reality has been far from easy. The Court has been faced from its inception with high expectations and has been seen as the primary answer to countless grave crimes committed around the world, which is far from true. The Court has been described to have a mixed performance, sometimes due to choices made by the Court itself, and in other instances due to the limited political support and backing it received from its States Parties.

In any case, the Court is complementary to national jurisdictions, and this is very important. It is a court “of last resort”. It means that it can only intervene when the State which has the primary responsibility for punishing the relevant crimes is incapable or has no genuine intention to do so.

The Court has the potential to be a game changer if its moves are thoughtfully carried out and if it is given the resources and support it needs to do its job.

Ok, thank you. So what’s next for the Afghanistan situation?

The Office of the Prosecutor will now begin its investigation to try to establish the truth. The investigation does not have a timeline. In other situations before the Court, it has taken several years before the Court identified persons suspected of committing the crimes it has been investigating.

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