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U.S. soldiers an American flag next to an aircraft in Afghanistan

"Survivors of war-on-terror era torture have waited seventeen years for some semblance of justice—which has so far been wholly denied," said Reprieve's Katie Taylor. (Photo: Program Executive Office Soldier/Flickr/cc)

Denouncing US Bullying of ICC, Rights Groups Demand Afghan War Crimes Victims Get Their Day in Court

Appeal filed against International Criminal Court's rejection of war crimes probe

Andrea Germanos

Demanding that the pleas for justice from victims of Afghanistan war crimes be heard, human rights organizations on Monday filed an appeal against the International Criminal Court's recent decision not to probe the alleged abuses.

The appeal (pdf), filed by Reprieve and the Center for Constitutional Rights (CCR), said the decision by the "court of last resort" was "devastating" for the six victims, as it left them unable "to contribute to a process that seeks to end impunity and contribute to the prevention of crimes, to know the truth, and to request reparations."

As Common Dreams reported, the court announced in April that it would not launch a probe into possible war crimes and crimes against humanity in Afghanistan, including those committed by U.S. forces. ICC prosecutor Fatou Bensouda requested the investigation in 2017.

The rejection of the probe—which came even as the three-judge chamber acknowledged "there is a reasonable basis to believe that the incidents underlying the request have occurred"—followed intimidation efforts by the Trump administration to block the investigation, including denying visas for ICC personnel, revoking Bensouda's visa, and President Donald Trump and national security adviser John Bolton threatening the court should it investigate possible U.S. or Israeli war crimes.

The appeal called out the U.S. bullying—and the ICC's giving in to it.

Blatant attacks on the court and those contributing to its work have been made at the highest levels, particularly by representative of the United States government in reaction to the prosecutor's request. Such actions cannot but constitute an interference with the independence of the court and the prosecution. More troubling still is the apparent suggestion in the decision (para.94) that far from resisting such attacks, the court has allowed itself to be cowed by them. Even if this was not the pre-trial chamber's intended meaning, the perception that the court has succumbed to political interference is in itself a cause for deep concern.They add to the victims' concern that without a rectificatory ruling from the appeals chamber, efforts may persist to exclude from the court's remit any actions of the United States government, its allies, or others who adopt such tactics. It is therefore particularly vital that the appeals chamber address the jurisdictional issue raised in the present notice of appeal.

"Survivors of war-on-terror era torture have waited seventeen years for some semblance of justice—which has so far been wholly denied. For many, the ordeal that began in Afghanistan continues, with no end in sight, at Guantánamo Bay," said Katie Taylor, deputy director at Reprieve, in a statement Monday.

"For the ICC to fold up its investigation, under pressure from the U.S., puts its credibility at risk," she said. "The court must recognize that these victims have a right to be heard."

Last week, CCR also drew attention to the possible U.S. interference on the ICC when it filed a complaint with the United Nations Special Rapporteur on the Independence of Judges and Lawyers, denouncing it as a "brazen disregard and disrespect for the fundamental principle of judicial independence."

"This complaint and request for a comprehensive investigation is prompted by the well-founded belief that there has been, and likely continues to be, interference with the independence of judicial proceedings at the International Criminal Court by senior officials of the United States, up to and including President Donald Trump," said the document sent Wednesday.

Bowing to U.S. pressure, said CCR staff attorney Katherine Gallagher, means the court failed to uphold its duty.

"The ICC decision not to open an investigation into crimes in Afghanistan and those involving U.S. citizens in the face of U.S. bullying sent the dangerous message that politics trumps justice," she said. 

"The ICC is a court of law resort. If it cannot—or will not—hold the powerful accountable for the most serious crimes," said Gallagher, "it fails to meet its core purpose of ending impunity and showing no one is above the law."

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