ICC turns down Afghan war crimes probe as U.S. hails victory

Blanche Robertson
April 13, 2019

FILE PHOTO: Public Prosecutor Fatou Bensouda attends the trial of Congolese warlord Bosco Ntaganda at the ICC (International Criminal Court) in the Hague, the Netherlands August 28, 2018.

Rights groups denounced the judges' decision as a blow for thousands of victims in the long-running Afghan conflict and warned it could embolden perpetrators around the world to act with impunity.

The statement comes after the International Criminal Court said in a statement earlier in the day, that it chose to decline the request of Prosecutor Fatou Bensouda to launch an inquiry into allegations of war crimes perpetrated by U.S. forces in Afghanistan.

With its limited budget, the court needs to prioritise resources on "activities that would have a better chance to succeed", the judges said.

But while the court said there was "a reasonable basis" to believe crimes had occurred, judges said Afghanistan's current situation "make the prospects for a successful investigation and prosecution extremely limited".

In 2017, chief prosecutor Fatou Bensouda asked judges to allow a full-blown probe not only into the Taliban and Afghan soldiers, but also global forces, particularly United States troops and members of the Central Intelligence Agency. Last week, it was confirmed that ICC prosecutor's visa had been officially revoked, barring travel to the USA with the exception of official business at the United States.

The White House also commented, calling the decision a "major worldwide victory" for the rule of law.

Secretary of State Mike Pompeo, who last month said the United States would deny or revoke visas to ICC investigators looking into abuses by US citizens and allies, also characterized it as a victory.

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In March, US Secretary of State Mike Pompeo announced that the United States would impose visa restrictions and possibly economic sanctions on individuals linked to any International Criminal Court investigation into alleged war crimes by US personnel in Afghanistan or by US allies, particularly Israel, elsewhere.

The Trump administration again named Israelis along with Americans as deserving immunity from International Criminal Court prosecution.

In the Afghanistan case, judges said Friday that a large number of victims had come forward: some 699 applicants in total made representations on behalf of "several millions of victims". The judges considered the time since the 2006 preliminary examination "and the political changing scene in Afghanistan since then" as well as "the lack of cooperation that the Prosecutor has received", which they said was "likely to go scarcer should an investigation be authorized".

Human rights groups said the ICC kowtowed to pressure from the Trump administration.

However, the pretrial chamber decision to take political factors into consideration in its decision was unusual, Human Rights Watch said. "It sends a unsafe message to perpetrators that they can put themselves beyond the reach of the law just by being uncooperative".

The American Civil Liberties Union said that the Trump administration had played "a risky game".

In the past, some African observers have accused the court of abandoning the pursuit of global justice in favour of the pursuit only of African leaders, and the failure to investigate the war in Afghanistan may provoke renewed calls for an African Union walkout.

"With its decision today, the International Criminal Court sends a risky message: that bullying wins and that the powerful won't be held to account", Center for Constitutional Rights lawyer Katherine Gallagher said, according to The New York Times.

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