ICC poised to formally start investigating war crimes in Afghanistan

GDPR

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According to Foreign Policy the International Criminal Court is poised to open investigation into possible war crimes committed in Afghanistan. The fact that Afghanistan has been under a preliminary investigation was made public in 2007 by the ICC and the focus of that investigation is possible war crimes that have been committed since May of 2003.

It is apparently likely that the chief prosecutor will seek to initiate a formal investigation in the coming weeks. As this is investigation would be on the initiative of the prosecutor instead of having been referred to the ICC by a member state or by the UNSC there remains an extra obstacle for the prosecutor to overcome should this report be true. The chief prosecutor would require the authorization of a three-judge panel before commencing the investigation. In the past, however, this has not proven to be problematic.

Foreign Policy points to two possible focus points for the investigation and provides a commentary on those focus points. The first possible focus point being described as such:

The prosecutor’s office has repeatedly called attention to alleged abuses of detainees by U.S. personnel between 2003 and 2005 that it believes have not been adequately addressed by the United States. In a report last year, it noted that “crimes were allegedly committed with particular cruelty and in a manner that debased the basic human dignity of the victims.” Bensouda may also want to probe further the attack by U.S. forces on a Médecins Sans Frontières facility in Kunduz that killed several dozen people.Bensouda may also want to probe further the attack by U.S. forces on a Médecins Sans Frontières facility in Kunduz that killed several dozen people.

Even once an investigation begins, it is not clear that the prosecutor would ever bring charges against Americans. Doing so would require significantly more evidence than the prosecutor’s office currently possesses. The ICC normally does not interview witnesses, take testimony, or gather forensic evidence during its preliminary examinations, and that work would be just the beginning.

In order to charge Americans with war crimes, Bensouda would likely also have to demonstrate a link between the conflict in Afghanistan and U.S. detention policies, which may not be easy; the United States reportedly brought several detainees to Afghanistan from other parts of the world. Perhaps most controversial, the prosecutor’s office would have to determine that the United States has failed to address allegations of torture through its own domestic prosecutions, investigations, and reviews.
The latter paragraph is an interesting and important one as it refers to the principle of complementarity which is one of the foundational principles of the Rome Statute. As the Coalition for the ICC puts it:

Complementarity is one of the foundational principles of the Rome Statute system. What was envisioned by the drafters of the Rome Statute was not simply a self-standing Court, but rather a comprehensive system of international justice, where the duty on States Parties to investigate and prosecute international crimes is clearly reinforced. Consequently, the International Criminal Court (ICC) is a court of “last resort” and will step in where national jurisdictions have failed to address international crimes.
Moving on to the second possible focus point of the investigation Foreign Policy comments the following:

Although the announcement of an investigation will discomfit Washington, the prosecutor’s office will likely devote most of its energy to prosecuting abuses by anti-government forces in Afghanistan, including the Taliban. The United Nations estimates that more than 20,000 civilians have died in the country since 2009, the majority at the hands of insurgent forces. Investigating insurgent crimes and attempting to assign individual criminal responsibility for them will test the investigative capacity of the court.

These investigations could also present their own political problems. The Afghan government has viewed immunity as an important point of leverage in its efforts to broker cease-fires with opposition forces. In 2007, the Afghan parliament enacted legislation offering amnesty to fighters who laid down their arms. And this September, the government inked an agreement with Islamist leader Gulbuddin Hekmatyar promising immunity for past political and military acts in exchange for an end to his activities against the government.

Moreover, past ICC reports on its preliminary examinations suggest that alleged abuses by the Afghan government itself will also receive scrutiny. In last year’s report, the prosecutor’s office described a range of alleged crimes by Afghan forces, including torture and mistreatment of thousands of detainees. Given these complications, Afghan officials may not welcome an investigation and may choose to provide only limited support to visiting ICC personnel.
Of interest here is that we see one of the issues that the ICC often has to grapple with: The balance between peace and justice. This balance has often been the subject of discussion in relation to the ICC and the ICC has been criticized for emphasizing justice over peace.

In any case, the author of the article in Foreign Policy is probably correct in stating that this will be a difficult investigation for the ICC both from a practical and political perspective. Nonetheless, I would welcome the initiation of a formal investigation into war crimes in Afghanistan by the ICC. It is of great importance that those who commit such war crimes be brought to justice.

Sources:

https://www.icc-cpi.int/afghanistan
Exclusive: International Criminal Court Poised to Open Investigation into War Crimes in Afghanistan | Foreign Policy
 


roc_

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Which judges are being appointed to the pre-trials and trials chamber for this case?

What possible channels may politicisation have crept in, if it has?

These are very important questions to answer when considering the ICJ and the ICC, particularly in light of how the OIC has been abusing international bodies to forward their aims, especially this last 15 years or so.

I hope it's all covered. I only raise the questions.
 

GDPR

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There's been an interesting and significant development. The Washington Post reports:

"International Criminal Court prosecutors say that a preliminary probe indicates that members of the United States armed forces and the CIA may have committed war crimes by torturing detainees in Afghanistan.

The prosecution office said in a report issued late Monday that U.S. armed forces personnel “appear to have subjected at least 61 detained persons to torture” in Afghanistan, mainly in 2003-2004.

The report adds that CIA operatives may have tortured at least 27 detainees in Afghanistan and elsewhere mainly in the same time period.

Prosecutors say they will decide “imminently” whether to seek authorization to open a full-scale investigation in Afghanistan.

The United States is not a member of the court, but its citizens could face prosecution if they commit crimes in a country that is a member, such as Afghanistan.
"

https://www.washingtonpost.com/world/the_americas/icc-prosecutor-us-forces-may-have-tortured-in-afghanistan/2016/11/14/ee47b64e-aabe-11e6-8f19-21a1c65d2043_story.html
 

eoghanacht

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Pffft...
 

Dame_Enda

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There is zero chance these people will face trial. Amy country which arrests them will have Trump breathing down their necks.
 

GDPR

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There is zero chance these people will face trial. Amy country which arrests them will have Trump breathing down their necks.
It's very doubtful, but better to try and hold people to account than not to try at all.
 

gijoe

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The US is not a party to the ICC so isn't this all for show?
 

GDPR

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The ICC was set up to criminalize the enemies of the Anglo-Zionist empire - not to bring the Ziomatrix to justice.
 

GDPR

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The US is not a party to the ICC so isn't this all for show?
It's true that the United States is not a party to the ICC, but that does not mean that its nationals cannot be prosecuted before it. The ICC has a dual jurisdiction, so to speak. First it has jurisdiction based on nationality. Crimes committed by the nationals of a state party fall under the jurisdiction of the ICC irrespective of where they are committed. The second basis for jurisdiction is territoriality. Crimes committed on the territory of a state party fall under the jurisdiction of the ICC. Afghanistan is a party to the ICC and hence the ICC would have jurisdiction.
 

gijoe

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It's true that the United States is not a party to the ICC, but that does not mean that its nationals cannot be prosecuted before it. The ICC has a dual jurisdiction, so to speak. First it has jurisdiction based on nationality. Crimes committed by the nationals of a state party fall under the jurisdiction of the ICC irrespective of where they are committed. The second basis for jurisdiction is territoriality. Crimes committed on the territory of a state party fall under the jurisdiction of the ICC. Afghanistan is a party to the ICC and hence the ICC would have jurisdiction.
The US ain't going to be surrendering anyone to them though!
 

GDPR

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The US ain't going to be surrendering anyone to them though!
Nope, I don't expect that to happen either. Nevertheless it's a good thing that the ICC looks into it and at least tries to hold these people to account. I would rather see them try and fail than not see them try at all.
 
I

Ismisebás

The US ain't going to be surrendering anyone to them though!
I am more suspicious, The ICC is a political tool. This could this be an attempt to try reclaim the moral high ground that the EU has well and truly lost.
Maybe you'll have a couple of grunts tried as sacrificial lambs, in this way they can try to shake off the fact that it exists as a kangroo court for the neo-colonialists enemies.
But it too little to late the EU is a discredited joke.
 

Karloff

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The idea of setting up a global system for punishing crimes against humanity was a very good idea - if humanity is to survive it's brutal infancy we need to advance in areas such as this.

However the US Democratic Party killed it, when they weaponised human rights and used it as an excuse to perpetrate human rights abuses on a wide scale. Putin and Africans and others saw what they were doing and lost all respect for the concept and how it had been used in a politically partisan way - in the most cynical way possible.

It's very doubtful, but better to try and hold people to account than not to try at all.
If you have two gangs at war - is holding one of them 'to account' while declaring the other one immune - really better than to hold neither to account? I dunno. It looks like you are just 'crowning' and legitimising the abuses of one of the two gangs.
 

GDPR

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Bensouda delayed her announcement by quite a bit since this thread started, but today that announcement has finally come:

The International Criminal Court's (ICC) chief prosecutor has announced she will seek to start an official investigation into possible war crimes during the war in Afghanistan.

"Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met," Fatou Bensouda said in a statement on Friday.

The prosecutor did not name the specific parties she seeks to investigate. But in a report last year (pdf), ICC prosecutors said the Taliban and its affiliates, Afghan authorities and members of the US armed forces and CIA may have committed war crimes.

"In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan," Bensouda said on Friday.

She added it is up to the judges of the court in The Hague to decide whether the criteria to authorise an investigation are fulfilled.

Bensouda said that if authorisation is given, her office will investigate "in an independent, impartial and objective way, crimes within the court's jurisdiction allegedly committed by any party to the armed conflict".
A good development.

ICC prosecutor to seek Afghanistan war crimes probe | USA News | Al Jazeera
 


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