Prosecutor and Victims Appeal ICC’s decision on Afghanistan Investigation

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“Interests of justice” rationale rings hollow

The ICC’s decision not to open an investigation in Afghanistan has left victims of the gravest crimes devastated. Many international and national organizations came together and continue to put pressure on the Court to review its decision and provide justice to the victims.

On June 7 2019, the ICC Prosecutor, Ms. Fatou Bensouda, filed a request for Leave to Appeal the Pre-Trail Chamber (PTC) II’s decision rejecting the Office of the Prosecutor’s (OTP) request to open an investigation into the situation in the Islamic Republic of Afghanistan. With this submission, the OTP seeks the permission of the PTC to appeal the decision in front of the Appeals Chamber.

The Prosecutor sought the PTC’s permission to appeal based on three grounds:

  1. The OTP questions whether it is permissible for the PTC to make a positive determination in relation to the fact that an investigation would serve the “interest of Justice”.
  2. The second ground of appeal focuses on the PTC’s discretional power in determining the “interest of Justice”, and in particular the OTP questions whether the PTC can rely, in its decision, on state cooperation or budgetary considerations.
  3. With the third ground of appeal, the OTP submits that by focusing on exclusively the specific incidents identified by the Prosecutor, plus any “closely linked” incidents, the PTC has marked a departure from the consistent practice of the Court. 

Following the OTP’s request, Human Rights organizations from Afghanistan (The Afghanistan Human Rights and Democracy Organization, Afghanistan Human Rights Organization, Afghanistan Forensic Science Organization, Feminine Solidarity for Justice Organization, and Afghan Victims’ Families Association) requested permission to make submissions as amici curiae regarding the Prosecution’s application.

The Organizations’ submissions are intended to assist the PTC in determining whether or not to grant the appeal, based on three issues: First and foremost, that the victims of international crimes in Afghanistan and Afghan society generally favor an appeal; secondly, that an appeal is necessary to accord fair treatment to Afghan victims; and finally that the issues certified for appeal should allow for observations on matters relevant to Afghan victims and Afghan society.

Similarly, the Office of the Public Counsel for Victims (OPCV) has requested the PTC to be allowed to appear before it on the three issues identified by the Prosecution in its Request.

PTC II, considering that additional submissions may assist the Chamber in assessing the Prosecutor’s Request, granted the possibility for Afghani Organizations and the OPCV to make their submissions. 

The OTP filed a request to both PTC and Appeals Chamber (AC) to dismiss the Legal Representative of Victim’s (LRV) submission, based on the detrimental diverging judicial proceedings. Victims also filed a response to the AC to request the dismissal of the request of the OTP.

On 11 July, The Afghanistan-Transitional Justice Coordination Group (TJCG), Armanshahr/OPEN ASIA, and the International Federation for Human Rights (FIDH), jointly submitted amicus curiae observations to Pre-Trial Chamber II in the context of the requests for leave to appeal by the OTP and LVRs. 

ICC’s decision not to open an investigation in Afghanistan

The decision by the International Criminal Court (ICC) judges not to open the investigation into alleged crimes committed in Afghanistan has been designated as an act moved by political considerations, overriding the concerns of victims in Afghanistan.

On 12 April 2019, Pre-Trial Chamber II of the ICC rejected a request by Prosecutor Fatou Bensouda to open an investigation into alleged war crimes and crimes against humanity committed in Afghanistan since 1 May 2003 as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute. The ICC judges stated that the investigation in Afghanistan at this stage "will not serve the interests of justice", despite the fact that the requirements of jurisdiction and admissibility are met. The judges affirmed in fact that the current situation in Afghanistan will make the "prospects for a successful investigation and prosecution extremely limited." They also noted that as a long period has passed since the investigation began in 2006, the Court needs to use its resources prioritizing activities that would have better chances to succeed.

The judgement, which took 18 months to be delivered, has been described as a blow for thousands of victims who have been waiting, for more than 15 years, for justice and to end impunity in their state.

The decision by the ICC was welcomed by the Trump administration. The United States President, Donald Trump stated that "it was a victory not only for these patriots, but for the rule of law" and called the ICC "illegitimate". He continued to state that "any attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response."

Reactions from the Civil Society

“Our global membership is expressing shock that the ICC did not authorize the request, and is stating that the arguments against authorization fly in the face of the founding tenets of the Court as articulated in the Preamble of the Rome Statute: ‘ending impunity and preventing mass atrocities with a view to achieving peace, security and the well-being of the people,” said William R. Pace, Convenor of the Coalition for the ICC. “Our members believe the Pre-Trial decision should be appealed and modified,” Pace added.

“We are extremely disappointed. The ICC judges speak of pressure and challenges, but victims in Afghanistan don't have to be told that seeking justice is a challenge and that investigation would only be the beginning,” said Guissou Jahangiri, Executive Director of Armanshahr/OPEN ASIA, Vice-President of FIDH, and founding member of the Afghanistan Transitional Justice Coordination Group.

Horia Mosadiq, Member of the Afghanistan Transitional Justice Coordination Group expressed shock and disappointment at the ICC’s ruling and stated that “The ICC's judges’ decision is simply a miscarriage of justice and a blow to the demands for justice of millions of victims of war in Afghanistan.”

Dr. Daoud Ali Najafi, Director of the Afghanistan Organization for Human Rights and Peace (AOHRP) opined, “Despite continuous requests from Afghan civil society and human rights organizations, it is very deplorable news that the ICC judges rejected the Prosecutor’s request to open an investigation into the situation in Afghanistan, particularly considering the increasing number of civilian casualties and war crimes still being committed in the country. We hope the ICC judges will reconsider their decision.”

The decision has left many wondering what the future holds for Afghanistan. “We are very concerned that the decision will lead to immunity being granted to Taliban forces in Afghanistan. The Afghan people are even more afraid of their future given the now very real possibility of the government sharing power with a militant group that is accused of committing massacres and which justifies its crimes by a radical ideology,” said Jalil Benish, Afghanistan Watch.

Biraj Patnaik, South Asia Director at Amnesty International declared, “Afghanistan has been witness to heinous crimes committed with near-absolute impunity, across the country, for more than a decade and a half. The ICC’s decision today is a shocking abandonment of the victims which will weaken the Court’s already questionable credibility.”

Param-Preet Singh, associate international justice director at Human Rights Watch said that the decision is a devastating blow for victims who have suffered grievous crimes without redress. “The judges’ logic effectively allows member countries to opt out of cooperating with the Court and sends a dangerous message to all governments that obstructionist tactics can put them beyond the court’s reach.”

Patrick Baudouin, FIDH Honorary President called the decision as a “dark day for justice.” He stated, “We condemn the ICC’s shocking decision, which is based on a deeply flawed reasoning. The ICC was created precisely to overcome the very challenges that made national investigations impossible – it is unacceptable that these challenges are now invoked by the Court to deny justice to the victims.”

Jamil Dakwar, director of the American Civil Liberties Union’s Human Rights Program, issued a statement affirming that “It is outrageous that victims of war crimes are far less likely to get justice for well-documented atrocities because of the Trump administration’s authoritarian efforts to sabotage an investigation before it could even get started. The Trump administration’s bully tactics may have helped the United States skirt accountability this time, but the administration is playing a dangerous game that will inevitably come back to haunt the United States. No one except the world’s most brutal regimes win when we weaken and sabotage international institutions established to fight impunity and hold the human rights abusers accountable.”

Background: The ICC Investigation on Afghanistan

The ICC prosecutors in 2006 opened a preliminary examination into war crimes and crimes against humanity committed in the Islamic Republic of Afghanistan since May 2003. In November 2017, the ICC Prosecutor submitted a request to the ICC Pre-Trial Chamber III to authorize the commencement of an investigation in relation to:

1- Crimes against humanity and war crimes allegedly committed by the Taliban and affiliated armed groups

2- War crimes allegedly committed by Afghan government forces and other members

3- War crimes allegedly committed by the US armed forces and members of the Central Intelligence Agency in Afghanistan and the territory of other States Parties to the Rome Statute since 1 July 2002.

The announcement of the opening of a preliminary examination was broadly welcomed by civil society and other observers as crucial if tentative step towards justice for victims.

According to the UN, since 2009, fighting in Afghanistan has killed 24,841 civilians and injured 5,347, with 2016 proving the deadliest yet for children. International crimes including murder, persecution, gender crimes, intentionally directed attacks against humanitarian personnel and against protected objects, conscription of children, and sexual violence have allegedly taken place throughout this period.

The United States is not a member of the ICC. In 2000, under the Clinton administration, the US signed the Rome Statute; however, the treaty was never submitted to Congress for ratification. In 2002, John Bolton “unsigned” the Rome Statute. However, Afghanistan has been a member of the ICC since 2003. The ICC can thus exercise its jurisdiction over the crimes committed on the territory of Afghanistan or by its nationals from 1 May 2003 onwards.

The ICC is the only permanent international court with the mandate to investigate and prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. It can intervene only when the State in question is unable or unwilling to carry out genuine investigations or prosecutions.

Circumstances Leading to the ICC's Decision to Reject the Investigation

The ICC’s decision on Afghanistan investigation comes a week after the United States revoked the ICC prosecutor, Fatou Bensouda’s entry visa in response to her inquiry into alleged war crimes by the US forces in Afghanistan. The Prosecutor stated that she will continue to pursue her duties for the Court, in The Hague, “without fear or favor” and would continue to travel to the US. She has not been restricted from visiting the United Nations headquarters in New York.

Following the rejection of the prosecutors visa, the ICC President Eboe-Osuji called on the United States to 'join her closest Allies and Friends at the table of the Rome Statute', and in the meantime, support the Court, 'whose values and objectives are entirely consistent with the best instincts of America and her values'. 'The past, the present and the future victims of genocide, crimes against humanity and war crimes need her to do so. And, it is with all due sense of responsibility that I directly request the leadership of the United States to give this support to the ICC', added President Eboe-Osuji.

Other reactions from International Institutions and Civil Society

“The US government’s hostile policy towards the ICC is a serious threat to humanity’s efforts to combat those who commit genocide, war crimes, crimes against humanity (including torture) and the crime of aggression”, said Dr. Tawanda Hondora, the Executive Director of WFM-IGP. “Revoking Bensouda’s visa in retaliation for her office’s investigation of allegations of serious crimes committed in Afghanistan is an abhorrent and chilling abuse of power”, added Hondora.

The European Union stated that it "expects the US to ensure that any measures adopted by the US in relation to the ICC is in full compliance with their international obligations, having also due regard to the ICC-UN Relationship Agreement." The EU continued, "We fully support the ICC and its independence and remain committed to cooperate with the ICC to guarantee its effectiveness and efficiency, and we expect States to lend the necessary assistance and support."

The American Bar Association in its statement urges “the State Department to immediately reverse this policy decision and to refrain from taking actions against legal professionals based solely on their work on behalf of the ICC."

The global civil society condemns the US administration's rejection of accountability which poses a limit to independent investigation In Afghanistan.

In response to Pompeo’s remarks to revoke visas of ICC personnel, the President of the Assembly of States Parties of the ICC, O-Gon Kwonnoted that the Court "stand[s] united against impunity. The International Criminal Court is an independent and impartial judicial institution crucial for ensuring accountability for the most serious crimes of concern to the international community… The Court is non-political and acts strictly within the legal framework of the Rome Statute, its founding treaty."

The European Union expressed serious concern about the measures adopted by the US and reiterated its strong support to the International Criminal Court. Spokesperson for EU Foreign Affairs & Security Policy,Maja Kocijančič declared, "Along with our international partners, we will continue to work towards a shared rules-based global order, with multilateralism as its key principle, and to promote the universality and preserve the integrity of the Rome Statute. We are ready to further engage with both States Parties and non-state parties on these important issues.”

The policy as announced by Pompeo aims to deter further efforts by the ICC to pursue US-allied personnel, including Israeli citizens. The situation in Palestine, which allegedly involves crimes committed by Israeli forces, has been under preliminary examination by the ICC Prosecutor since 16 January 2015.

“Such actions not only obstruct the core mission of the Rome Statute to end impunity, but also erode the broader rules-based international order," stated H.E. Aurelia Frick, Minister of Foreign Affairs of the Principality of Liechtenstein. She continued, "As the situations in Myanmar and Venezuela have most recently demonstrated, the ICC remains humanity’s best hope for investigating the most serious international crimes. Our support for the ICC is more critical than ever. Liechtenstein will continue engaging with those who are sceptical of the Court’s mission in order to support a rules-based international order with the Charter of the United Nations at its core."

Reactions from the Civil Society

“The statement made by Secretary Pompeo is objectionable in principle and grossly misrepresents the facts of the Rome Statute and the ICC. The ICC, as a court of law, must continue its work, undeterred, in accordance with its mandate and the overarching principle of the rule of law,” stated Coalition for the ICC Convenor, William Pace.

"The foundational principle of the Rome Statute is that states or other actors cannot commit genocide, war crimes, or crimes against humanity and claim immunity," noted Kirsten Meersschaert, the Coalition for the ICC’s Director of Programs. “The ICC's role is to ensure justice for the victims of these crimes and the Coalition supports all actions that will end impunity for the gravest international crimes,” Meersschaert added.

Mr. Daniel Balson, Advocacy Director at Amnesty International USA, weighed in on the development, stating, “While victims’ rights should be the very top priority of the United States government, throwing roadblocks in front of the ICC’s investigation undermines justice not only for abuses committed in Afghanistan, but also for the millions of victims and survivors throughout the world who have experienced the most serious crimes under international law." Balson continued. “This announcement is the latest attack on international justice and international institutions by an administration hell-bent on rolling back human rights protections."

“The US decision to put visa bans on ICC staff is an outrageous effort to bully the Court and deter scrutiny of US conduct," said Richard Dicker, International Justice Director at Human Rights Watch. “Trump administration threats against the ICC mask the real problem, the failure of US authorities to address past torture and other abuses by the CIA and US armed forces…This is precisely the ICC’s role, to deliver justice for victims when all other doors are closed,” he continued.

In light of the statement, No Peace Without Justice, declared, "Secretary Pompeo should be held to account for today's blatant attempt to pervert the course of justice by threatening, intimidating and retaliating against those who are simply carrying out their duties to ensure justice for the crimes committed in Afghanistan, irrespective of who the perpetrators may be.”

Jamil Dakwar, Director of the Human Rights Program at The American Civil Liberties Union, opined, “This is an unprecedented attempt to skirt international accountability for well-documented war crimes that haunt our clients to this day. It reeks of the very totalitarian practices that are characteristic of the worst human rights abusers, and is a blatant effort to intimidate and retaliate against judges, prosecutors, and advocates seeking justice for victims of serious human rights abuses. We won’t rest until we get to the bottom of this, and are considering options on behalf of those potentially impacted by this misguided and dangerous policy.”

James Goldston, Executive Director of the Open Society Justice Initiative

“Secretary Pompeo’s remarks reflect this Administration’s view that international law matters only when it is aligned with US national interests. But that’s not how law works."

The American NGO Coalition for the International Criminal Court

"The @StateDept announcement to restrict visas from ICC staff is a further attack on the @IntlCrimCourt . However, the ICC has ample evidence to continue investigating Afghanistan without US support. Victims rights should always be a top priority in American foreign policy. https://t.co/rZ7SeVeunA"

Nika Jeiranashvili, the Executive Director of Justice International

"Respect to Dutch for being the first ones to stand up to bullying @DutchMFA. I am always vocal about mistakes & failures of @IntlCrimCourt but superpowers' attacks for the sake of avoiding accountability cannot be condoned #supportICC https://t.co/govyi0LUCM"

Amal Nassar, Representative to the ICC with the International Federation for Human Rights

"It's difficult not to see these latest manoeuvres as an admission of guilt."

Mark Kersten, Deputy Director of the Wayamo Foundation

"Predictable. I don’t think the #ICC or it’s proponents should worry too much about this. It is pathetic. Among people this vile administration won’t let in: refugees, asylum seekers, and people helping international justice. They’re on the wrong side of history. https://t.co/KebfbDuBHF"

Reactions from states

The European Union expressed serious concern about the measures adopted by the US and reiterated its strong support to the International Criminal Court. "Along with our international partners, we will continue to work towards a shared rules-based global order, with multilateralism as its key principle, and to promote the universality and preserve the integrity of the Rome Statute. We are ready to further engage with both States Parties and non-state parties on these important issues."

"In view of today’s US announcement, the European Union expresses its serious concern about the measures adopted and reiterates its strong support to the @IntlCrimCourt https://t.co/ZX8MnItKCf— Maja Kocijančič (@MajaEUspox) March 15, 2019"

BELGIUM

"#Belgium supports wholeheartedly @IntlCrimCourt and its independence. It embodies the efforts to develop the international rule of law, an ideal to which the US has a longstanding commitment. I am therefore deeply worried by the unprecedented measures against members of the #ICC https://t.co/OLfuJDsaz2— didier reynders (@dreynders) March 16, 2019"

CZECH REPUBLIC

"CZ supports the #ICC and its independence. We are concerned about any measures that might hinder the ICC's role in the international criminal justice. We believe in the continuation of the US long-standing commitment to the international criminal justice.— Czech MFA (@CzechMFA) March 18, 2019"

AUSTRIA

"Austria appreciates the longstanding US commitment to the international rule of law. Therefore, we are particularly concerned about the measures against #ICC personnel. Austria supports the #ICC & its judicial independence in delivering justice for victims of most serious crimes.— Karin Kneissl (@Karin_Kneissl) March 15, 2019"

ESTONIA

"Estonia fully supports the @IntlCrimCourt and its independence. Estonia is therefore deeply concerned about the US measures against #ICC personnel. https://t.co/Z6EjoIl6xa— Estonian MFA (@MFAestonia) March 17, 2019"

FINLAND

Finland UN: "Independent and efficient judiciary is a key element of RoL. At the time when the rules-based international order is facing increased pressure, Finland continues fully to respect the ICC’s judicial independence, and to promote its universality."

GERMANY

"Full confidence in work of the #ICC, indispensable in fight against impuntiy. Deeply concerned about US intention to put visa restrictions on ICC personnel. Vital for work & obligations towards UN that their access to #UN HQ in NY is not being restricted.— German Mission to UN (@GermanyUN) March 16, 2019"

FRANCE

"CPI Dans un contexte de remise en cause croissante de la ICC de son fonctionnement et de son avenir, la France, qui a soutenu dès l’origine la création de la CPI par le Statut de Rome, lui renouvelle son plein soutien,  tweeted the France, Ministry of Foreign Affairs."
ENGLISH: “In the context of growing challenge for the ICC in its functioning and its future, France, who supported the ICC by the Rome Statute from the beginning, renews its full support today.”

SPAIN

​Spain expressed its support for the Rome Statute and the ICC; "Spain fully supports the legitimacy, independence and impartiality of the Court and reminds of its complementary nature to national criminal jurisdictions, which have formal superiority regarding these crimes."

NETHERLANDS

"The NL deeply regrets the decision of the US to impose visa restrictions on #ICC personnel. The NL fully supports the ICC and its independence, which is crucial in the fight against impunity and in upholding the international rule of law.— Stef Blok (@ministerBlok) March 15, 2019"

SWEDEN

Sweden UN: "The EU remains a strong supporter of the ICC."

LUXEMBOURG

Luxembourg: "Like EU & Benelux partners Luxembourg is seriously concerned about US visa restrictions on #ICC personnel. Jean Asselborn expresses full support for the ICC and its crucial work to fight impunity & deliver justice for victims of most serious crimes under Rome Statute."

 SLOVENIA

"Slovenia supports the @IntlCrimCourt and its judicial independence in delivering justice for victims of the most serious crimes. In this regard we regret the US decision to impose travel restrictions on #ICC officials and reiterate the importance of global fight against impunity.— MFA SLOVENIA (@MZZRS) March 18, 2019"

LIECHTENSTEIN

Minister of Foreign Affairs of the Principality of Liechtenstein, H.E. Aurelia Frick, stated that, “such actions not only obstruct the core mission of the Rome Statute to end impunity, but also erode the broader rules-based international order." He stated, "As the situations in Myanmar and Venezuela have most recently demonstrated, the ICC remains humanity’s best hope for investigating the most serious international crimes. Our support for the ICC is more critical than ever. Liechtenstein will continue engaging with those who are sceptical of the Court’s mission in order to support a rules-based international order with the Charter of the United Nations at its core."

SWITZERLAND

Switzerland expressed its regret that the United States of America has imposed visa restrictions against officials of the Internationale Criminal Court, "The Court is independent and bound only by law. It must therefore not become the target of political measures. Switzerland reiterates its support to the Court that makes an important contribution to the prevention and punishment of the most serious crimes and provides justice for the victims. It thus plays a crucial role in securing sustainable peace and stability."

CANADA

Canada issued a statement supporting the ICC in its work of investigating and prosecuting the most serious crimes of international concern: "Canada firmly supports the rules-based international order and the multilateral institutions that underpin it." “Personnel of the International Criminal Court should not be targeted for the important work that they do.”

ECUADOR:

Ecuador regrets the decision made by the US and reiterates its strong support for the important work carried out by this permanent tribunal based in The Hague. "Ecuador wishes to recall that in the "Declaration of Quito on the Twentieth Anniversary of the Adoption of the Rome Statute of the International Criminal Court" issued on June 8, 2018, several South American countries reiterate the commitment of the region to the Statute of Rome, its support to achieve the universality of the referred instrument and improve the functioning of the Court."

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  5. Accountability for International Crimes in Afghanistan

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  5. ICC refuses to investigate crimes in Afghanistan, including US torture: An unacceptable and shameful decision
  6. ICC Pre-Trial Judges' Decision Shatters Hope for Justice in Afghanistan
  7. ICC rejects war crimes investigation in Afghanistan: Continuing impunity for perpetrators, no voice yet for victims
  8. ICC judges reject the investigation in Afghanistan
  9. No ICC Investigation in Afghanistan: A bad decision with big implications
  10. Can the PTC’s Afghanistan decision be appealed?

US Revokes ICC's Prosecutor’s Visa

  1. WFM-IGP Press Release: Shameful revocation of ICC Prosecutor’s US visa
  2. ICC President calls on U.S. leadership to support the Court and to “join their closest Allies and Friends at the Rome Statute table”
  3. EU statement: expressing support to the International Criminal Court
  4. The American Bar Association President Bob Carlson's Statement

US Announces Restrictions on Visa for ICC Personnel’s Investigation on Afghanistan

  1. US bars entry to International Criminal Court investigators 
  2. US denying visas to International Criminal Court staff
  3. Trump admin to ban entry of International Criminal Court investigators
  4. Opinio Juris: The United States Continues its Attacks against the International Criminal Court
  5. U.S. imposes visa bans on International Criminal Court personnel - Pompeo
  6. Pompeo: State Dept. bars war crimes court members from the U.S., citing torture probe
  7. U.S. Threats Against International Criminal Court Under Fire
  8. U.S. to restrict visas for International Criminal Court staff
  9. US to cut off visas over ICC Afghanistan probes
  10. Pompeo Slams International Criminal Court, Threatens to Deny, Revoke U.S. Visas
  11. US to deny visas for ICC members investigating alleged war crimes
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  13. US bars entry to ICC investigators, says 'attacking America's rule of law