AMSTERDAM: Just days after the United States government revoked the visa of the International Criminal Court’s prosecutor, ICC judges rejected her request to open an investigation into alleged atrocities in the war in Afghanistan, citing practical reasons.
The decision on Friday, which prosecutor Fatou Bensouda might appeal and which angered human rights groups, means that neither the United States nor the Afghan government and the Taliban will face any investigation at the international court for alleged crimes that date mostly from 2003-2004.
As expected, President Donald Trump welcomed the decision. “This is a major international victory, not only for these patriots, but for the rule of law,” he said in a statement. “We welcome this decision and reiterate our position that the United States holds American citizens to the highest legal and ethical standards.”
He also warned the court against trying to prosecute Israelis or Americans following a complaint by Palestinians, who have called for an ICC investigation of Israel. In an unusual ruling, the judges had said that Bensouda’s case seemed to have met the court’s criteria for jurisdiction and admissibility, but given an array of “practical considerations” that made chances of success remote, it did not make sense to pursue it further.
They cited a failure to gather evidence at an early stage, a lack of cooperation from governments involved, and the likely costs as prohibitive.
In addition, “the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited,” the judges said in a 2-1 ruling.
“An investigation into the situation in Afghanistan at this stage would not serve the interests of justice and [the chamber] accordingly rejects the request,” the judges said.
Bensouda said her office would “consider all available legal remedies” against the decision.
International legal experts saw the ruling in part as a recognition of the realities the court faces in conducting prosecutions.
Human rights groups were incensed.
The decision “is insane and politically charged”, Karine Bonneau of the International Federation for Human Rights (FIDH) said in a tweet.
She added the ruling was “an affirmation of double standards. This situation was exactly why the court was created”.
Kevin Jon Heller, associate professor of International Criminal law at Amsterdam University, said the decision appeared to impose significant hurdles on any case before the ICC in terms of the chances of a successful prosecution.
“If these are the criteria they are never going to open an investigation”, he said.
Published in Dawn, April 13th, 2019