International Criminal Court judges overstepped their powers when they refused to authorise an investigation into allegations of widespread abuses by government forces, the Taliban and US military and intelligence operatives during the Afghanistan conflict, a prosecution lawyer and victims’ representatives said on Thursday.
But a lawyer representing Afghanistan at an ICC appeals hearing countered by saying that Afghanistan opposes an international investigation and should be allowed to prosecute war criminals in its own courts.
They were speaking on the second day of a hearing into the ICC prosecution office’s appeal against an April decision by a pretrial chamber to reject a proposed investigation in Afghanistan, saying it was not in the interests of justice.
The high-stakes hearing at the Hague-based court is focused on a proposed investigation that could, for the first time, lead to ICC indictments against Americans and help end widespread impunity for crimes in Afghanistan.
It is extremely unlikely that, even if the investigation were to go ahead and prosecutors indicted Americans, they would ever appear in court. The United States government is not a member of the ICC and refuses to cooperate with it.
While the US government didn’t send any official representatives to the hearing, President Donald Trump‘s personal lawyer, Jay Sekulow, was in court representing the European branch of the American Center for Law and Justice.
He told judges that the lack of US cooperation with the court was based on US law and bilateral treaties Washington had signed with Afghanistan and was not going to change.
Sekulow said Prosecutor Fatou Bensouda wants the investigation to go ahead “because she thinks the United States may yet decide to cooperate. We submit that this ignores the history of principled non-cooperation under multiple administrations of multiple parties in the United States.”
He added that “it is not in the interests of justice to waste the court’s resources while ignoring the reality of principled non-cooperation.”
The hearing came on the day the court’s prosecution office issued an annual report on progress in other preliminary probes, including high-profile cases in the Palestinian territories, Ukraine, Venezuela, the Philippines and into allegations of crimes by UK forces in Iraq.
The report said that in the case of alleged crimes by Israel and Palestinians in the occupied territories, the prosecutor “believes that it is time to take the necessary steps to bring the preliminary examination to a conclusion”. It did not provide a timeframe.
After the preliminary probe in Afghanistan that lasted more than a decade, the court’s prosecutor, Fatou Bensouda, asked judges in November 2017 to authorise a far-reaching investigation.
She said there was 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 that the Taliban and other armed groups had killed more than 17,000 civilians since 2009, including some 7,000 targeted killings, and that Afghan security forces were suspected of torturing prisoners at government detention centres.
But in a decision that was condemned by victims’ organisations and human rights groups, ICC judges said in April that an investigation would not be in the interests of justice because of a likely lack of cooperation and the time that has elapsed since the alleged crimes were committed.
Prosecution lawyer Helen Brady told a five-judge panel at Thursday’s hearing that the judges who rejected Bensouda’s request considered factors that were outside their powers and “gave inadequate consideration to the gravity of crimes and interests of victims”.
Rodney Dixon, a lawyer representing Afghanistan, told the hearing that the country opposed the proposed investigation and had set up an international crimes unit to prosecute cases involving rebel groups and Afghan security forces in domestic courts.
The ICC began work in 2002 as a court of last resort, which could take on cases which national legal authorities were unable or unwilling to prosecute.
Dixon said that while Afghanistan opposes the investigation, the ICC could help the country to carry out local prosecutions and act as a “backstop” if necessary.
He said the court’s focus should be on Afghanistan’s “true potential to do more in the future, especially if it is supported by the ICC and the prosecutor”.