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ICC’s Blatant Denial Of Justice And Its Implicit Dangerous Repercussion – Analysis

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The International Criminal Court (ICC) is an intergovernmental organisation and international tribunal that sits in The Hague in the Netherlands. The ICC has the jurisdiction to prosecute individuals for the crimes of genocide, crimes against humanity, war crimes, and crimes of aggression(1). According to a report (2) by the internationally funded Afghanistan Analyst Network (AAN) (3), Fatou Bensouda the Prosecutor of ICC’s Office of The Prosecutor (OTP) had requested permission in 2016 to probe into the crimes committed in the Afghanistan War conflict.

That request for investigation and probe into the committed war crimes was made by the ICC’s Prosecutor based upon the authentic findings in the ICC’s document (4) titled “Report on Preliminary Examination Activities 2016”. It mentioned that the war crimes in Afghanistan were committed by all the parties involved in the armed conflict, including the Taliban, Afghanistan government, and US’ military forces and US’ Intelligence Agency, etc.

About the war crimes committed by US’ military and Intelligence Agency, etc. following extracts (5) of that ICC document are worth noting:

a. “The information available provides a reasonable basis to believe that, in the course of interrogating these detainees, and in conduct supporting those interrogations, members of the US armed forces and the US Central Intelligence Agency (“CIA”) resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape. These acts are punishable under articles 8(2) (c) (i) and (ii) and 8(2) (e) (vi) of the Statute”.

b. “These alleged crimes were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees”.

c. “The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan. Likewise, there is a reasonable basis to believe that all the crimes identified herein have a nexus to the Afghanistan conflict”.

Then ICC asked Afghans’ views about going for an investigation of the war crimes committed in their country. The response from the Afghans who submitted their statements was immense. According to news dated 17 February 2018 of the British online Newspaper Independent, the statements were collected between 20 November 2017 and 31 January 2018, by organisations based in Europe and Afghanistan and sent to the ICC; and that Afghans submitted 1.17 million statements to the International Criminal Court (6). That news has also been published by many other media outlets.

And, as for the views expressed by the Afghans in their statements, in another report dated 26 February 2018 the AAN quoted the ICC report that: “The ICC report said victims’ backing for an ICC investigation was “overwhelming” with 98 per cent of victims who made submissions to the Court saying they wanted to see this happen”; and that, “The people who responded to the Court said they had suffered the following crimes, a “non-exhaustive” list, the ICC said:[M]urder; attempted murder; imprisonment or other severe deprivation of liberty; torture; rape; sexual violence; persecution; enforced disappearance of persons; other inhumane acts; attack against civilian population; attack against protected objects; destruction of property; pillage; forced displacement; outrages upon personal dignity; and denying a fair trial” (7).

It was at that stage that the US government, which was always opposed to any investigation of war crimes in Afghanistan – because its own military and intelligence personnel were also involved – came out threateningly against ICC’s Office of The Prosecutor (OTP) relating to OTP’s proposed investigation of war crimes in Afghanistan. That threatening pressure by US government against ICC’ intention to probe the war crimes in Afghanistan unfolded (briefly) as follows:

a. As reported on 10 September 2018 by the French state owned international news and current affairs television network France 24 – as also by many other media outlets – “The United States threatened Monday to arrest and sanction judges and other officials of the International Criminal Court if it moves to charge any American who served in Afghanistan with war crimes” (8).

b. According to a report dated 10 September 2018 by the British daily Newspaper The Guardian, US’ National Security Adviser John Bolton not only threatened the ICC with sanctions, but also asserted: “US national security adviser calls ICC illegitimate and says ‘we will let it die on its own’” (9).

c. Then, as reported by BBC on 5 April 2019: “The US has revoked the entry visa for the prosecutor of the International Criminal Court (ICC), Fatou Bensouda. The decision is thought to be the US response to Ms Bensouda’s investigation into possible war crimes by American forces and their allies in Afghanistan. The US secretary of state had warned the US might refuse or revoke visas to any ICC staff involved in such probes” (10).

After that continuing chain of US’ threats to ICC, it was probably this US’ act of revoking ICC’s Prosecutor Fatou Bensouda’s visa on 4 April 2019 which proved the final act of the known US’ acts of arm-twisting of international institutions to submit to its dictates; and the ICC’s pre-trial judges’ decision on 12 April 2019 clearly reflected buckling into submission. The ICC’s pre-trial judges rejected the ICC’s Prosecutors request to allow investigation into the war crimes committed in Afghanistan.

According to a AP report quoted by Tehran Times (11) dated 16 April 2019 “The ICC judges claimed that their decision was influenced by the prospect of investigators having to deal with challenging investigations, a lack of ready state cooperation and budgetary constraints”

There is wide-spread condemnation of this decision by the ICC’s pre-trial judges. Some of those mentioned in the Tehran Times report are: (a) “Patrick Baudouin, president of the International Federation for Human Rights, called the rejection a “dark day for justice” and a “shocking decision, which is based on a deeply flawed reasoning”; (b) ““Afghanistan has been witness to heinous crimes committed with near-absolute impunity, across the country, for more than a decade and a half. The ICC’s decision today is a shocking abandonment of the victims which will weaken the court’s already questionable credibility,” said Biraj Patnaik, South Asia Director at Amnesty International. “None of the reasons given by the ICC judges justifies this decision”; and (c) “If the ICC begins and is allowed to investigate crimes against humanity committed by the West, the entire twisted concept of the U.S. and Europe being pioneers of freedom and democracy could easily and quickly collapse,” wrote Andre Vltchek in an article in New Eastern Outlook. “Even criticism by Washington, Paris or London of countries such as Venezuela, China or Russia, for their ‘human rights violations’, would become absurd and grotesque. Entire concept of ‘regime change’ could clearly be exposed for what it always really was – lawless gangsterism,” Vltchek added” (12).

However, the most noteworthy comments came from Dr. Sima Samar. She is an Afghan and is a well known woman’s and human rights advocate, activist and a social worker within national and international forums. She is currently the Chairperson of the Afghan Independent Human Rights Commission(AIHRC) and, from 2005 to 2009, United Nations Special Rapporteur on the situation of human rights in Sudan (13). In a report dated 12 April 2019 by npr (National Public Radio, an American privately and publicly funded non-profit membership media organization), as also by other media outlets, Dr. Sima Samar told AP pointing towards the gravest danger implicit in this decision. She cautioned, “With this decision, people will lose hope of getting justice and they might take revenge, fueling conflict in the country” (14).  

Factually, Dr. Sima Samar’s comments reflect only part of the implicit dangerous repercussions of this blatant denial of justice to the severely aggrieved Afghan masses by ICC pre-trial judges, under US’ pressure. She is right in cautioning that this extreme injustice may induce a strong urge in the aggrieved Afghan masses for taking revenge, thereby fueling conflict in the country – those who know the psyche of Afghans know it that it is almost a certainty. However, that is not the only implicit dangerous repercussion. This grave injustice is also bound to cause loss of hope of the people for getting justice through the international organisations, not only in Afghanistan but in many other parts of the world too where weaker people have suffered/are suffering the brutalities at the hands of the world powers. And, that severe depression of loss of hope is more likely to induce in the aggrieved masses a sort of ‘mass human hatred’ along with the urge of vengeance against the aggrievers – something which may be more dangerous than weapon of mass destruction.

References and Notes
(1). https://en.wikipedia.org/wiki/International_Criminal_Court
(2). https://www.afghanistan-analysts.org/one-step-closer-to-war-crimes-trials-2-icc-prosecutor-requests-authorisation-to-investigate/
(3). The Afghanistan Analysts Network is an independent non-profit policy research and analysis organization. Founded in 2009, it is registered as an association in Germany and Afghanistan, funded in large part by Scandinavian countries, and has a core team based in Kabul, Afghanistan. https://www.google.com/search?q=afghan+analyst+network+-+about&oq=Afghan+Analyst+Network+&aqs=chrome.1.69i57j35i39j0l4.26438j1j8&sourceid=chrome&ie=UTF-8
(4). https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf
(5). Ibid. p. 47.
(6).https://www.independent.co.uk/news/world/middle-east/afghanistan-war-crimes-claims-victims-millions-submitted-court-isis-taliban-a8214301.html
(7).https://www.afghanistan-analysts.org/icc-reports-victims-overwhelmingly-support-investigation-into-war-crimes-in-afghanistan/
(8).https://www.france24.com/en/20180910-usa-trump-threatens-arrest-icc-judges-american-soldiers-afghan-war-crimes
(9).https://www.theguardian.com/us-news/2018/sep/10/john-bolton-castigate-icc-washington-speech
(10). https://www.bbc.com/news/world-us-canada-47822839
(11). https://www.tehrantimes.com/news/434752/World-slams-ICC-s-decision-to-not-investigate-U-S-war-crimes
(12). Ibid.
(13). https://en.wikipedia.org/wiki/Sima_Samar
(14). https://www.npr.org/2019/04/12/712721556/world-criminal-court-rejects-probe-into-u-s-actions-in-afghanistan



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Brigadier (Retd.) Dr. Ahsan ur Rahman Khan

Brigadier (Retd.) Dr. Ahsan ur Rahman Khan is a retired officer of Pakistan Army, a war veteran, a post-retirement PhD relating to Afghanistan from University of Peshawar, lectured in social sciences in the universities of the twin cities of Islamabad and Rawalpindi for about 11 years, and a published freelance research analyst.

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