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International Criminal Court (ICC) judges on Friday (April 12th) rejected any investigation into crimes committed in Afghanistan. In the absence of cooperation from Kabul and Washington, magistrates believe that no trial could succeed and that an investigation would not serve " the interests of justice ".
The prosecutor of the International Criminal Court (ICC) will not investigate crimes committed in Afghanistan, at least not now, decided the judges in a ruling on April 12. In November 2017, Fatou Bensouda asked for permission to open an investigation for crimes committed by the Taliban, Afghan security services, US and international forces , the CIA and the new player in the conflict, the Islamic State. The prosecutor also wanted to investigate the secret CIA prisons for torturing Afghans abducted and interrogated in Poland, Romania and Lithuania.
The Court can not conduct sensitive cases
For the judges, the Court is competent, the crimes are serious, but such an investigation would not serve "the interests of justice". They believe that the prosecutor, Fatou Bensouda, has no chance of succeeding in arresting the perpetrators of crimes and conducting trials. The international context is not favorable. The prosecutor's office has not been able to hold a single, strong trial in 15 years and is therefore not ready. The case would therefore be doomed to failure. The decision prompted immediate protests from international law professors and human rights organizations. FIDH denounced " an unacceptable and shameful decision ", while HRW accuses " a devastating blow to the victims ".
For the judges, there is no chance that the protagonists of the conflict will cooperate with the Court. Neither the Taliban, nor Kabul, nor Washington. But if they do it in legal terms, they admit to having succumbed to American pressure. If the United States has, since the opening of a preliminary examination (a pre-investigation stage) of the prosecutor, 11 years ago, still tried to weigh, in a discreet manner, to prevent the prosecution of their nationals they have, from September 2018, publicly threatened the Court.
Falcon John Bolton and Donald Trump alternately promised to destroy the jurisdiction that Washington never ratified the founding treaty. In early April, Secretary of State Mike Pompeo implemented the sanctions program against anyone related to the investigation, revoking the visa of prosecutor Fatou Bensouda. The pressure of these three fervent advocates of torture will have won. The court had however obtained support from several capitals and the UN against Washington's threats.
Kabul was playing the game
On the Kabul side, the Afghan government had, in recent years, played the "game" of international justice, taking a series of measures allowing it to try the perpetrators of crimes in its own courts, if the Court were to seize a case targeting his security forces, police and intelligence services. The Rome Statute, the Criminal Code of the Court , had been translated into Dari and Pashto and the Afghan Code completed so as to allow the magistrates of the country to judge, if necessary. Because the Court intervenes only as a last resort. If a state has neither the means nor the political will to conduct the trials itself. If they judge themselves, she is thus disqualified.
In Kabul, the Afghanistan Analyst Network believes that power can now blow because "caught between its legal obligation to cooperate with the Court and its total dependence on (...) a US government relentlessly opposed to the Court, the prospect of an investigation of the ICC was horrible. No government is willing to co-operate blindfolded in the Court's investigations, across all regimes, whether dictatorial or democratic. It is up to the Court, judges and prosecutors, to put in place binding strategies, which require a detailed knowledge of the issues and political networks at the local and geopolitical levels, without losing sight of their purpose: to deliver justice.
Victim support for Afghanistan investigation
In rendering their decision, the judges also inflict a serious setback on the Afghan victims. Asked if they thought that an investigation would be contrary to the "interests of justice", they had massively, and in defiance of the risks they would incur, invited the Court to commit, in particular, because " the current government Afghanistan can not control warlords in Afghanistan, and many crimes are perpetrated, but no one can make their voices heard out of fear. "
Threats continue from Washington
This decision was eagerly awaited in The Hague, Kabul, Washington, but also Jerusalem. Immediately after the decision, Donald Trump hailed " a great victory ", to again threaten the Court with any attempt to prosecute Israeli officials for the colonization of the occupied territories and the 2014 war in Gaza, which the prosecutor was seized of by the Palestinians .
No US citizen, no representative of an allied country will fall in the nets of the Court, this is the message. The decision reflects the criticism of the African Union since the issuance of arrest warrants for former Sudanese President Omar al-Bashir ten years ago. Several African states criticized him for being the tool of Western policies of regime change. Critics that the Gambian magistrate, Fatou Bensouda, hoped to counter by launching her investigation. But international justice remains that of the victors. Since the diplomatic negotiations establishing the Court in 1998, the United States has been fighting against the omnipotence of the Court. The decision on Afghanistan does not deny the force of law, but emphasizes the weakness of lawyers.