Trump, the ICC and Afghanistan

By Faiza Farid*

On Thursday 11th June, Trump ordered to sanction the International Criminal Court (ICC)-an independent adjudicating body, almost two months after the Court decided to probe in the alleged war crimes and crimes against humanity committed in Afghanistan after the US troops entered the land in 2003. Established in 1998, after the Yugoslavian and Rwandan crisis, it started functioning after the Rome Statute (a multilateral treaty) came into force in 2002. Almost a year after 9/11. The ICC was created with the sole purpose of keeping a check on war crimes, crimes against humanity, genocide and crimes of aggression. Based in The Hague, it is different from the International Court of Justice (ICJ), as it has the jurisdiction of prosecuting individuals (a feat in International Criminal Law that has been long sought since the prime examples of Tokyo and the Nuremberg Trials, and in the cases of Yugoslavia and Rwanda). The ICC is the last resort and can exercise its jurisdiction in the following instances: a state is member of the Court, the case is referred to it by the Security Council, the state party to the treaty refers the case to the Prosecutor (Article 13) and finally the Prosecutor may initiate the investigation under Article 15, for inquiry regarding the crimes defined in Article 5 that fall under Court’s jurisdiction.

On 5th March 2020, the Court authorized the opening of an investigation in Afghanistan under The ICC’s Prosecutor’s application from 1st May 2003. It would investigate the alleged war crimes committed by the US Armed Forces and CIA, Afghan security forces and Taliban in Afghanistan and also at the detention cells in Poland, Romania and Lithuania (all of whom are also members of the Court). Afghanistan submitted its instrument of accession (a procedure in which a state may become party to a treaty already in effect, negotiated or signed by other members/states) on 10thFebruary 2003 so the Court can start its investigation from 1st May 2003.

In Afghanistan’s case the Prosecutor, Fatou Bensouda, had submitted the request to open the investigation to the Pre-Trial Chamber II, which was rejected on the basis of not being in the “interests of justice” in its decision of 12th April 2019. The Appeals Chamber on “5th March 2020” reversed the decision of the Pre Trial Chamber II, authorizing an investigation on the basis of proprio motu (as with her own discretion) as given in Article 15 of Rome Statute and of the following aspects. Along with Article 15, Article 13 (c) and Article 53 (1) of the treaty, all these provide the basis for the Prosecutor to carry out such an investigation. The request to initiate such an inquiry is derived from Article 15 (4)’s two stipulations: one of a reasonable basis and criteria. Here, Article 15 (4) also looks into the possibility of whether the crimes (that are to be investigated) fall under the jurisdiction of the Court. Then moving on to Article 53 1 (c), the investigation that is to be initiated, must also satisfy the criteria of Article 53 1 (c) that mentions, that the “gravity” of the situation should also be assessed. And the investigation should also look whether this would fall in interestsof justice. The Pre Trial Chamber II as mentioned previously had ruled that the investigation would not be in the interest of the Court. The Appeals Chamber, on the other hand on the basis of the above articles of the Rome Statute reversed the decision, thereby allowing the opening of an investigation in Afghanistan on war crimes and crimes against humanity post 9/11.

The Prosecutor had submitted an application on 20th November 2017, to the Pre Trial Chamber II to open an investigation in Afghanistan. The evidence was collected from 699 participants between 7th December 2017 to 9th February 2018 under the Victim Participation and Reparations (VPRS). It was primarily the non-cooperation from the sources that had initially prompted the Pre Trial Chamber to go forward with such a decision.

The ICC had started to lose its credibility after numerous critics and human rights groups came forward with notions of it not prosecuting the powerful. Out of the 13 investigations that ICC is pursuing 10 involve African countries (five are state-referrals, states referring themselves to the Court for investigation). Moreover, in 2016, Burundi, the Gambia and South Africa notified the UN of their intention to leave and major states like the US, Russia, India, and China  are not party to the treaty. The notion of prosecuting individuals and states seems increasingly limited.

Two months after the decision, with the impending US elections, rampaging protests, Trumps’ demagoguery does not come as a shock. The US even went as far as blocking the visa of the ICC’s Chief Prosecutor (Fatou Bensouda) last year, for showing the inclination to start an investigation. Its opposition comes from two basic factors: the atrocities may even be committed by Pompeo himself and Israel. The US asserts that the investigation is illegal since both the US and Israel are not parties to the Rome Statute, hence the ICC’s jurisdiction does not apply whereas, Articles 12 and 13 of the Rome Statute provide a legal basis for such an investigation.

This is certainly not the first instance that the US has opposed mechanisms of international justice. One major example is of the Nicaragua contraband case of 1986 and the ICJ’s ruling. The case which decided that the US had supported the Contras against the Sandinistas of Nicaragua and also mined the Nicaraguan harbours, was decided in favour of Nicaragua by the ICJ. The US was charged on the following accounts: breach of customary international law to not use force against another state, to not violate another state’s sovereignty, to not intervene in the state’s internal affairs and not disrupt the maritime operations under Article XIX of its Treaty of Friendship, Commerce and Navigation signed in Managua in 1956.  The ICJ had ordered the US to pay reparations. Although this case is by no means a precedent or in any way related to the Afghanistan inquiry, it is just another instance where the US (under the Reagan administration) walked out of the proceedings stating that it was biased. Such similarities can also be seen in the remarks made against the ICC such as Trump’s “executive order”.

The investigation in Afghanistan would be murky and hence would face numerous obstacles. Out of these, the Afghan government and Afghan forces oppose such an investigation. It would be more problematic when it comes to Pakistan. With the Pakistani premier declaring Osama Bin Laden a martyr, the role of Pakistan’s armed forces and establishment in Afghanistan has always been debated. Pakistan is not a party to the Rome Statue like the United State. But, it has been involved in the country even before the Soviet invasion of Afghanistan 1979. Thus, it is highly unlikely that Pakistan especially under the Imran-Bajwa  regime and a strong Pashtun bias would comply with any such investigation.

*This article was written by Faiza Farid. Faiza is a freelance columnist and has an MPhil in International Relations from Kinnaird College.