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A sign outside the International Criminal Court in The Hague

A sign outside the International Criminal Court in The Hague seen in 2017. (Photo: jbdodane/flickr/cc)

Following Trump Administration's Bullying, ICC Judges Reject Probe Into War Crimes in Afghanistan

The decision represents "a shocking abandonment of the victims"

Andrea Germanos

The International Criminal Court announced Friday that it rejected a probe into possible war crimes and crimes against humanity in Afghanistan, including those committed by U.S. forces.

The decision is "a shocking abandonment of the victims which will weaken the court's already questionable credibility," said Biraj Patnaik, South Asia director at Amnesty International.

Prosecutor Fatou Bensouda requested the investigation in 2017, a move which was praised by human rights organizations. At the time, Bensouda said there was a "reasonable basis to believe" that war crimes were committed by the Taliban, Afghan National Security Forces, U.S. armed forces, and the CIA.

In retaliation for Bensouda's action, the Trump administration last week revoked her entry visa.

While the three-judge chamber acknowledged "there is a reasonable basis to believe that the incidents underlying the request have occurred," it nonetheless rejected her petition.

The court justified its decision in a statement, explaining, in part:

[T]he chamber noted the time elapsed since the opening of the preliminary examination in 2006 and the political changing scene in Afghanistan since then, the lack of cooperation that the prosecutor has received and which is likely to go scarcer should an investigation be authorized hampering the chances of successful investigation and prosecution, as well as the need for the Court to use its resources prioritizing activities that would have better chances to succeed. [...]

[I]t is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favoring the investigation. Thus the Chamber concluded that an investigation into the situation in Afghanistan at this stage would not serve the interests of justice.

That explanation, however, falls short, said Patnaik.

"The gravest crimes can only ever be investigated in trying circumstances. If anything," he said, "the court's reluctance to proceed with investigations in the face of such constraints only reveals its overreach and signals its weak resolve."

What's more, Patnaik added, the decision can't be decoupled from U.S. Secretary of State Mike Pompeo and Trump national security adviser John Bolton's recent threats against ICC staff seeking to probe possible U.S. war crimes.

"Coming so closely on the heels of a series of unhinged attacks by senior U.S. officials, and following long and unexplainable delays up to this point, the decision ultimately will be seen as a craven capitulation to Washington's bullying and threats," said Patnaik.

The U.S.-based Center for Constitutional Rights (CCR) similarly found the court's decision appalling.

"With its decision today, the International Criminal Court sends a dangerous message: that bullying wins and that the powerful won't be held to account," said Katherine Gallagher, senior staff attorney at CCR, who filed victims-representations to support the probe.

Gallagher also pointed to Bolton and Pompeo's bullying efforts.

"In bowing to the pressure campaign of the Trump administration, the pre-trial chamber—and the states parties who have failed to adequately resource and support the court—accepts impunity," she added. "But the victims of the powerful will not stop in their efforts to make true the adage that no one is above the law."

In a statement following the ICC judges' decision, prosecutor Bensouda said that her office "will further analyze the decision and its implications, and consider all available legal remedies."

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