Skip to main content

A person leaves the International Criminal Court in The Hague, Netherlands on Jan. 16, 2019.

The Associated Press

Just days after the United States’ government revoked the visa of the International Criminal Court’s prosecutor, judges at the ICC on Friday rejected her request to open an investigation into alleged atrocities in the war in Afghanistan, citing practical reasons.

The decision, which prosecutor Fatou Bensouda may appeal, angered human-rights groups and means the Taliban, the Afghan government and the United States will not face any investigation at the International Criminal Court for their alleged crimes, which dated mostly from 2003-04.

U.S. President Donald Trump called the decision “a major international victory” and denounced the international court for its “broad, unaccountable, prosecutorial powers,” as well as for what he considers its threat to U.S. sovereignty.

Story continues below advertisement

“Any attempt to target American, Israeli or allied personnel for prosecution will be met with a swift and vigorous response,” Mr. Trump said.

White House National Security Adviser John Bolton, a sharp critic of the ICC, called the ruling a “vindication” of the United States’ tough policy against the court he has engineered and a “stinging defeat” for the prosecutors.

He told reporters that even the cases of ousted Sudanese president Omar al-Bashir and Venezuelan President Nicolas Maduro, whom Washington wants to step down, should fall under the jurisdiction of their home countries and not the ICC.

“Fundamentally, political maturation and responsibility requires that people be held responsible by their own societies,” Mr. Bolton said.

In an unusual ruling, the ICC judges said Ms. Bensouda’s case seemed to have met the court’s criteria for jurisdiction and admissibility, but given an array of practical considerations that made chances of success remote, it did not make sense to pursue it further.

They cited a failure to gather evidence at an early stage, a lack of co-operation from governments involved and the likely costs as prohibitive.

In addition, “the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited,” the judges said in a 2-1 ruling.

Story continues below advertisement

“An investigation into the situation in Afghanistan at this stage would not serve the interests of justice and (the chamber) accordingly rejects the request,” the judges said.

Ms. Bensouda said her office would “consider all available legal remedies” against the decision.

International legal experts saw the ruling in part as a recognition of the realities the court faces in conducting prosecutions.

Human-rights groups were incensed.

The decision “is insane and politically charged,” Karine Bonneau, director of international justice at the International Federation for Human Rights (FIDH), said in a tweet.

The ruling was “an affirmation of double standards. This situation was exactly why the court was created,” she added.

Story continues below advertisement

Kevin Jon Heller, associate professor of international criminal law at Amsterdam University, said the decision appeared to impose significant hurdles on any case before the ICC in terms of the chances of a successful prosecution.

“If these are the criteria, they are never going to open an investigation,” he said.

COURT WAS ‘LAST HOPE’

In 2006, Ms. Bensouda’s predecessor, Luis Moreno Ocampo, opened an examination into alleged war crimes by all parties in the conflict in Afghanistan, including the possible role of U.S. personnel in relation to the detention of suspects.

Ms. Bensouda took over the dossier in 2010, but did not request a formal investigation until November, 2017.

The United States revoked Ms. Bensouda’s entry visa earlier this month, after U.S. Secretary of State Mike Pompeo said in March that Washington would withdraw or deny visas to any ICC staff investigating possible war crimes by U.S. forces or allies in Afghanistan.

ICC prosecutors said in 2015 they had evidence suggesting international forces in Afghanistan had caused serious harm to detainees by subjecting them to physical and psychological abuse.

Story continues below advertisement

They also noted that there was evidence of violations committed by Taliban and forces that supported the Afghan government.

U.S.-backed forces drove the Taliban from power in Afghanistan in 2001 at the start of a war that has dragged on for 17 years.

Human-rights and victims’ organizations in Kabul called the ICC ruling “absolutely shocking.”

“We, the Afghan people, have suffered so much and the court was a last hope for all of us in a country which is completely lacking justice,” said Hadi Marifat, of the human-rights group AHRDO.

The ICC is a court of last resort with 122 member states. It acts only when countries within its jurisdiction are found to be unable or unwilling to seriously investigate war crimes, genocide or other serious atrocities.

The court has convicted three men for war crimes and crimes against humanity since it was set up in 2002: Congolese warlords Germain Katanga and Thomas Lubanga and a former Islamist rebel who admitted wrecking holy shrines during Mali’s 2012 conflict.

Story continues below advertisement

There have been repeated negotiations in recent months between the Taliban and U.S. special envoy Zalmay Khalilzad to try to broker a deal to end the Afghan conflict. So far, the Taliban has refused to meet directly with the Afghan government, which it dismisses as a U.S. puppet regime.

Report an error
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

Comments that violate our community guidelines will be removed.

Read our community guidelines here

Discussion loading ...

Cannabis pro newsletter