International Criminal Court approves Afghanistan investigation

Appeals judges at the International Criminal Court gave the green light on Thursday for prosecutors to open an investigation targeting the Taliban, Afghan forces and US military and intelligence personnel for war crimes and crimes against humanity.

The global court upheld an appeal by prosecutors against a pretrial chamber’s rejection in April last year of Prosecutor Fatou Bensouda’s request to open a probe in Afghanistan.

Pretrial judges last year acknowledged that widespread crimes have been committed in Afghanistan, but rejected the investigation saying it wouldn't be in the interests of justice because the likely lack of cooperation meant convictions would ultimately be unlikely.

That decision drew fierce criticism from human rights organisations who said it neglected the desire of victims to see justice in Afghanistan and effectively rewarded states that refused to cooperate with the Hague-based court.

Full investigation

Thursday’s hearing could clear the way for Prosecutor Fatou Bensouda to open a full-blown investigation into alleged crimes by the Taliban, Afghan government forces and US forces at secret detention centres.

At a hearing in December, prosecutors argued that pretrial judges at the global court overstepped their powers in April last year when they refused to authorise an investigation.

In a decision that drew fierce criticism from human rights activists, the pretrial chamber said an investigation would not be in the interests of justice because it was unlikely to lead to successful prosecutions.

After a preliminary probe in Afghanistan that lasted more than a decade, Bensouda asked judges in November 2017 to authorise a far-reaching investigation.

She said there is information that members of the US military and intelligence agencies “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period.”

She also said the Taliban and other insurgent groups have killed more than 17,000 Afghan civilians since 2009, including some 7,000 targeted killings, and that Afghan security forces are suspected of torturing prisoners at government detention centres.

Afghanistan might not cooperate

Thursday’s hearing comes days after an ambitious peace deal was signed by the US and the Taliban.

Even if an investigation is authorised, the prospects of meaningful cooperation by any of the sides in Afghanistan are dim.

At the December hearing, the government of Afghanistan said it objected to the investigation and has set up a special unit to investigate war crimes. 

The ICC is a court of last resort that only takes on cases if domestic jurisdictions are unable or unwilling to prosecute.

The United States does not recognise the court and refuses to cooperate with it.

There was no official US delegation at December's appeal hearing but President Donald Trump’s personal lawyer, Jay Sekulow, appeared on behalf of the European branch of the American Center for Law and Justice and told judges that US position would not change.

He told appeals judges that “it is not in the interests of justice to waste the court’s resources while ignoring the reality of principled non-cooperation.”