In March 2020, the ICC’s senior judges authorised investigations into whether American, Afghan, and Taliban soldiers committed crimes in Afghanistan after May 2003. In light of this decision, Donald Trump signed off on sanctions and visa restrictions for those involved in the investigation and their families.
THE VIOLATIONS AND THE ICC’S MANDATE.
The ICC’s Chief Prosecutor Fatou Bensouda found reasonable basis to believe that “members of the US armed forces and the CIA have committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence pursuant to a policy approved by the US authorities”. For instance, the American, CIA-operated secret prisons that were set up after the US invasion into Afghanistan in 2001 face serious allegations of systemic torture and abuse.
Bensouda campaigned for this ICC investigation since 2017. Her proposal was initially rejected in 2019 on the grounds that it was unlikely that any of the parties in question would cooperate. However, the ICC recently overturned this decision, on the grounds that the lower court had misinterpreted some of the ICC’s rules about investigations.
The ICC was set up in 2002 with the purpose of being an international “court of last resort” for war crimes and crimes against humanity (as well as genocide and the crime of aggression). The ICC can only investigate crimes that take place or are committed by a member state, unless a case is referred to them by the United Nations. The US is not one of the 123 nations who subscribe to the Court. However, since Afghanistan is a member state, the ICC is mandated to carry out this investigation.
“UNLAWFUL” BULLYING BY THE TRUMP ADMINISTRATION.
The Trump administration’s decision to sanction ICC officials marks a concerted campaign against the Court. In April 2019, the US revoked Bensouda’s visa and threatened the same fate for anyone else who tried to further the campaign for an investigation. In March 2020, the Trump administration stated that the authorisation of the investigation was a “truly breath-taking action by an unaccountable political institution masquerading as a legal body”. Following Trump’s sanctions against the Court, the US attorney general William Barr described the ICC as “little more than a political tool employed by unaccountable elites”. He also claimed that the ICC was “violating the sovereignty of the United States” and announced an investigation into the Court’s alleged corruption.
THE RESPONSE OF THE ICC AND THE INTERNATIONAL COMMUNITY.
The ICC stated that this was “an escalation and an unacceptable attempt to interfere with the rule of law and the Court's judicial proceedings”. The head of the ICC, Chile Eboe-Osuji, noted his surprise that “such a renowned bastion of liberal democracy” had launched a “smear campaign” against the Court. He considers the actions of Trump and his administration’s accusations “unlawful”.
Both France and the Netherlands, who also deployed troops to Afghanistan, deplored Trump’s new measures as a “grave attack on the court and […] multilateralism”. Elsewhere, 67 ICC member states that affirmed their “unwavering support” for the court.
Despite this, experts worry that these latest actions could impede the ICC’s investigation. If the ICC proceeds with the investigation, any assets of court officials in the US may be frozen, and they may be denied access to the country. Logistically, it could also be more difficult for the ICC to hire staff.
UPHOLDING THE “RAISON D’ÊTRE” OF THE ICC
The investigation has moved from being a project that even senior judges of the ICC doubted was possible to being closely linked to the “raison d’être” of the court – justice.
The ICC has faced challenges in the past. There were problems surrounding witness protection that led to trials in Kenya collapsing, since the ICC does not have its own police force to provide adequate protection. Several African nations also withdrew from the Court, including South Africa in 2016, alleging a bias in the ICC’s investigative and prosecutorial policies towards western democracies. At the time, global leaders did not heavily condemn this rejection of international justice. However, in December 2019, member states launched a review process that seeks to strengthen the Court. The Afghanistan investigation shows that the ICC is working to address claims that the court is Western-centric.
Eboe-Osuji has stated that ICC officials are not backing down from the “questions of justice that need asking”. With the continued support of the international community, it appears that Trump will not succeed in deflecting an investigation into the US’s action in Afghanistan.
