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The Permanent Premises of the International Criminal Court in The Hague, Netherlands.  © 2016 UN Photo/Rick Bajornas

(The Hague) – The decision by International Criminal Court (ICC) judges not to open a formal investigation into alleged grave crimes in Afghanistan denies the country’s victims a path to justice, Human Rights Watch said today.

On April 12, 2019, a pretrial chamber unanimously rejected the November 2017 request by the court’s prosecutor, Fatou Bensouda, to investigate alleged crimes against humanity by the Taliban and alleged war crimes by Afghan National Security Forces and the US military and Central Intelligence Agency. The request was to include such crimes since 2003, when Afghanistan joined the court.

“The International Criminal Court’s judges’ rejection of an Afghanistan investigation is a devastating blow for victims who have suffered grievous crimes without redress,” said Param-Preet Singh, associate international justice director at Human Rights Watch. “The judges’ logic effectively allows member countries to opt out of cooperating with the court and sends a dangerous message to all governments that obstructionist tactics can put them beyond the court’s reach.”

The ICC is a court of last resort and can only try cases of crimes against humanity and war crimes for which national authorities are unwilling or unable to do so. The court acknowledged that there was a “reasonable basis to believe” that crimes within the jurisdiction of the ICC’s Rome Statute had been committed in Afghanistan by the Taliban, Afghan forces, and United States personnel. The court also recognized the absence of investigations and prosecutions of those most responsible for these crimes.

In its decision, however, the court concluded that “the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited.” Following the decision, the prosecutor’s office indicated that it was assessing its “legal remedies.”

The US government has threatened to block any potential ICC investigation that might include US nationals or nationals of US allies. In March, Secretary of State Michael Pompeo announced that the US would restrict visas of ICC staff responsible for a potential Afghanistan investigation, and Bensouda confirmed on April 5 that the US had revoked her visa. Trump administration claims that the judges’ decision was a victory for this policy and the rule of law disregards the impact it will have on the tens of thousands of victims in Afghanistan who will be denied a path to justice, Human Rights Watch said.

The court’s decision acknowledges that 680 of the nearly 700 applications from victims “welcomed the prospect of an investigation aimed at bringing culprits to justice, preventing crime and establishing the truth.”

However, the pretrial chamber decision to take political factors into consideration in its decision was unusual, Human Rights Watch said. It notes as obstacles “changes within the relevant political landscape both in Afghanistan and in key States (both parties and non-parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario.” These preclude “meaningful cooperation from relevant authorities…. whether in respect of investigations or of surrender of suspects.” The chamber also notes the limited cooperation of Afghanistan throughout the prosecutor’s 11-year preliminary examination and the court’s overstretched resources and concludes that an investigation “would not serve the interests of justice.”

The human rights situation in Afghanistan has deteriorated as the conflict has intensified in recent years. In 2018, more than 11,000 civilians were killed or injured in the fighting. The Taliban and other insurgents have been responsible for the majority of unlawful attacks on civilians. Torture in government detention centers has increased. A United Nations report in May 2017 described numerous and credible allegations of torture, extrajudicial killings, and enforced disappearances, among other abuses. The government has not prosecuted any senior officials for war crimes or human rights violations.

“By closing the door on this investigation, the ICC judges have let political considerations outweigh the rights of victims to see their abusers held to account,” Singh said. “Getting countries to cooperate with the court is a real challenge, but this decision is an invitation to governments to create hurdles to stop the ICC from acting.”


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