Afghan War Crimes Will Remain a Secret

Justice, critics say, is the latest casualty in America’s Afghan war. It wasn’t lost on the streets of Kabul or the scorched sands of Helmand Province however – but in the courtrooms of the Hague. The International Criminal Court (ICC) last week decided to forgo investigation into alleged war crimes in the Afghanistan, despite acknowledging their likely existence. Such action, the judges argued, would not serve the interests of justice – but for some it simply underlined the court’s systemic impotence in the face of opposition.

“Extremely limited” were the prospects of a successful prosecution the three ICC pre-trial chamber judges said, delivering their unanimous decision. Certain inescapable factors accounted for this: the current instability of Afghanistan now half-controlled by a resurgent Taliban, questions over the evidence gathered since the preliminary examination opened in 2006, the court’s need to prioritise resources for cases with a better chance of success, and – crucially – the scarcity of cooperation from relevant parties.

On the last point, the ICC will feel especially vindicated. The most relevant of parties, the United States, has never recognized the court’s authority. Only days earlier Washington revoked the visa of Fatou Bensouda, the chief prosecutor – in line with a policy to shield US citizens “from unjust prosecution by this illegitimate court,” as put by National Security Adviser John Bolton. His boss, Donald Trump, could barely contain his glee at the ICC’s ruling, hailing it a “major international victory”.

And in a rare showing of unity, Democrats tacitly welcomed the decision – disdain for the Hague-based court is truly bipartisan in Washington. In Israel too there was jubilation, with the recently re-elected Benjamin Netanyahu branding the scrapped investigation “absurd”. The US-ally is facing an ICC probe of its own, focusing on alleged crimes committed in Gaza and other Palestinian territories.

But in Afghanistan, where the judiciary has struggled to prosecute those linked to alleged human rights violations, there was dismay. Now in its eighteenth year, America’s longest ever war has wrought misery upon a generation of Afghans. Knowing the limitations of domestic courts, victims’ families had placed faith in the ICC to deliver justice, submitting around a thousand complaints to the preliminary inquiry. Rather than serving the interests of justice, the court’s dismissal “contributes to a culture of impunity,” said the Afghanistan Independent Human Rights Commission (AIHRC).

This anger has been echoed globally by groups aghast at the ICC’s decision. For the court to conclude that it had “a reasonable basis” to believe war crimes had occurred but reject further investigation amounted to a “craven capitulation,” said Biraj Patnaik of Amnesty International. The group charged the court with “a shocking abandonment of the victims”, pointing to the US’s “bullying and threats” in explaining the step down.

And while the ICC identified a lack of cooperation from all sides – the Afghan authorities and Taliban included – it is indeed the US’s obstinance that has provoked the angriest backlash. Allegations against American operatives and their behaviour in the war are well documented. In their preliminary investigation, prosecutors claim to have found evidence of “torture, cruel treatment, outrages upon personal dignity, and rape” in regard to individuals under US military detention.

These, among a litany of other allegations, were not the actions of isolated individuals, they said, but seem to have been been part of an officially sanctioned system “approved at senior levels of the US government”. The CIA’s infamous “black sites” – secret prisons used for interrogations – were also detailed in the reports. Torture allegations were levelled at the Afghan security forces too, and thousands of civilian deaths were attributed to militant groups.

That these charges will not be further investigated sends a worrying message: “The powerful won’t be held to account,” says Katherine Gallagher, a senior attorney who filed victim representations to the ICC’s preliminary inquiry. Guénaël Mettraux, a leading international lawyer who has worked in the Hague, told Il Giornale that “the decision can only result in no justice at all,” adding that, if the court’s ruling isn’t overturned, it suggests “the ICC will only investigate where there is no resistance to its efforts, which is the exact opposite of what it was created for”.

Such doubts over the ICC’s primary function are growing. The Philippines and Burundi unilaterally withdrew from the court recently – both had been facing probes into possible human rights abuses. And in another dent to the body’s authority, Sundanese generals have said they won’t extradite former president Omar Hassan al-Bashir on genocide charges, choosing to imprison him themselves.

A further slip in credibility could follow the ICC’s Afghan ruling, critics say. “A real concern right now is that states which may be under ICC scrutiny will look at this decision and its content and say: ‘what we need to do to thwart accountability is make it so that the ICC thinks that investigations will be too hard to conduct; then we’re off the hook’,” says Mark Kersten of the Wayamo Foundation, an international justice group.

It was conceived as a court of last resort – the final hope for victims who could seek justice nowhere else. But for tens-of-thousands of Afghans, it seems the ICC will offer no recourse to their suffering. The prosecurial team is considering its options, but an appeal is far from guaranteed. And with an opponent like the United States, it’s easy to see why. But critics say that opposing the seemingly unopposable should be the in court’s very DNA. Regrettably, the fragile concept of international justice looks to be growing ever frailer.