The U.S. trial at The Hague

The grounds for the ICC’s case against the U.S. for alleged atrocities in Afghanistan look strong

June 25, 2020 12:15 am | Updated June 26, 2020 12:39 am IST

ICC Prosecutor Fatou Bensouda. File

ICC Prosecutor Fatou Bensouda. File

U.S. President Donald Trump’s authorisation of new sanctions on the International Criminal Court (ICC) is an act of retaliation against the court’s high-profile investigation to bring justice to victims of war crimes and crimes against humanity.

Also read | International Criminal Court condemns U.S. sanctions

In March, the Hague Court’s Appeals Chamber unanimously authorised investigation into alleged atrocities by U.S. troops in Afghanistan since May 1, 2003 as well as other alleged crimes committed since July 1, 2002 in the Central Intelligence Agency’s so-called black sites in Poland, Romania and Lithuania. The court overturned a 2019 pre-trial chamber decision and admitted the 2016 preliminary findings of the ICC’s chief prosecutor, Fatou Bensouda. Ms. Bensouda’s report claims systematic atrocities of torture, summary executions, forced disappearances and rape, in which the Taliban, the Haqqani Network and Afghanistan’s defence forces were also implicated.

Decrying the probe

Mr. Trump’s June 11 executive order, which decries the investigations of U.S. personnel as a threat to American national security and foreign policy, slapped asset freezes and family travel bans on investigators. The curbs build on the State Department’s revocation last year of Ms. Bensouda’s U.S. visa. At the time, the move was widely viewed as an attempt to pre-empt the decision over the Afghanistan probe, which the pre-trial chamber declined to authorise the following month.

Secretary of State Mike Pompeo has also said that the new measures would be deployed to shield Israel, which faces a separate inquiry following Ms. Bensouda’s application last December. It relates to Israel’s settlements on the West Bank and the 2014 invasion of Gaza, resulting in hundreds of Palestinian casualties. The latest sanctions could in theory apply to victims and witnesses, besides lawyers and researchers assisting investigators. But their effectiveness is doubtful, say commentators, since the presence of the Hague staff and others on U.S. soil may not be required for progress in the case.

The U.S. has always refused to recognise ICC jurisdiction over U.S. personnel on the grounds that it is not party to the Rome Statute that underpins the court. In 2002, the George W. Bush administration suspended its signature to the Statute, when it failed to win backing to restrict the court’s remit solely to cases where the accused belonged to a ratifying state. To do otherwise was a negation of a basic principle of treaty law and would impair the U.S. from meeting its international humanitarian obligations, the officials had argued. Accordingly, the U.S. Congress passed the American Service-Members’ Protection Act, requiring the President to protect American forces from prosecution in The Hague court, besides extending such commitment to the troops of its allies.

Also read | Justice is still teething, 15 years on

On the other hand, the 1998 Rome Statute provides for the prosecution of crimes committed in the territory of any one of the 123 states-parties, even if the accused come from a non-member nation. This is the basis for the current investigation wherein Afghanistan and the three European nations, the location of the alleged crimes, are within the ICC’s jurisdiction, even if the U.S. remains outside.

Situation in Kabul

Meanwhile, after nearly 20 years of Afghanistan’s brutal civil war, which claimed hundreds of thousands of lives, the country’s political future seems highly uncertain. Kabul’s government was excluded from the February agreement between the U.S. and the insurgent Taliban; the latter did not even commit to a lasting ceasefire. On the contrary, its leaders laid down the release of some 5,000 Taliban fighters as a precondition to begin negotiations with the government. The situation has thus strengthened the perception that the real aim behind the agreement was to demonstrate America’s troop reduction before Mr. Trump hit the campaign trail on his re-election bid. In the absence of a functioning government in Kabul, domestic remedies for victims of mass atrocities are a far cry. The grounds for Ms. Bensouda’s case could not be stronger.

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