Patrick Baudouin, FIDH Honorary President
“After 11 years of preliminary examination by the Office of the Prosecutor, the judges took more than a year to consider the gravity of the crimes and the Court’s jurisdiction. After this unusually long period, the ICC decided today to reject Fatou Bensouda’s request. Not because the crimes were not committed, but for practical and political reasons. The thousands of victims, of violent extremists and of both national and international forces, who participated in this process and who were overwhelmingly in favour of an investigation, are not being acknowledged. The ICC has turned its back on them.”
Guissou Jahangiri, FIDH Vice-President and Armanshahr/OPEN ASIA Executive Director
BACKGROUND
On 20 November 2017, ICC Prosecutor Fatou Bensouda submitted her request to the ICC Pre-Trial Chamber III to open an investigation into the situation in Afghanistan on the following charges.
The Office of the Prosecutor (“OTP”) requested the authorization of the ICC Pre-trial Chamber judges to open an investigation into three sets of crimes on the territory of Afghanistan:
(1) crimes against humanity and war crimes, including murder, imprisonment or other severe deprivation of physical liberty, persecution on political and gender grounds, and intentionally directing attacks at civilians, humanitarian personnel and/or protected objects, and conscription of children under the age of 15 by the Taliban and affiliated armed groups;
(2) war crimes, including torture, cruel treatment, outrages upon personal dignity, and sexual violence by Afghan government forces, namely members of the ANSF; and
(3) war crimes committed by U.S. armed forces and members of the CIA not only on the territory of Afghanistan, but also by U.S. actors operating in secret detention facilities operated by the CIA in Poland, Romania, and Lithuania since 1 July 2002, principally focusing on the period of 2003-2004.
Tens of thousands of victims had participated in the proceedings to support the Prosecutor’s request to open an investigation on the situation in Afghanistan, as serving the interest of justice in Afghanistan.
The United States is not a State Party to the ICC Statute. On 10 September 2018, John Bolton, the US national security adviser, has threatened the ICC with sanctions if an investigation was opened into alleged war crimes committed by American nationals in Afghanistan, declaring “the United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court”. He added that the Trump administration would “fight back” and impose sanctions if the Court formally proceeded with opening an investigation into alleged war crimes committed by US military and intelligence staff during the war in Afghanistan or pursued any investigation into Israel or other US allies.
As a first concrete step, on 15 March 2019, the US Secretary of State Mike Pompeo has announced the U.S. will revoke or deny visas to members of the International Criminal Court involved in investigating the actions of US troops in Afghanistan or other countries, and was prepared to take further steps, including economic sanctions. On 4 April 2019, the United States revoked the visa of the ICC Prosecutor.