Just a few minutes ago, the Appeals Chamber of the International Criminal Court (ICC) found that the Pre-trial chamber of the ICC erred when it decided not to give the ICC Prosecutor authorisation to investigate the 'situation in Afghanistan'. The Appeals Chamber has, in the place of the Pre-trial chamber, taken the decision to grant Prosecutor Fatou Bensouda authorisation to investigate that situation.
This means that the ICC will investigate whether any war crimes or crimes against humanity have been committed on the territory of Afghanistan and, if this is in the interest of justice, the Court will have jurisdiction to try any individuals suspected of having committed those crimes. This includes individuals who are citizens of countries that might not have ratified the Rome Statute, including United States soldiers.
The Pre-trial chamber, in its first decision, decided not to give authorisation on the basis that such an investigation was not in the interest of justice, since the Taliban and the US government were equally unlikely to cooperate with the ICC in this matter. The Appeals Chamber found that the Pre-trial chamber was not tasked with making that distinction, since that power resides with the Prosecutor and the Prosecutor alone. Since she decided that an investigation of the situation in Afghanistan was in the interest of justice, the Pre-trial chamber has only limited authority to consider otherwise.
Not only has the Appeals Chamber decided that the investigation in Afghanistan may commence; it has also decided that the CIA prisons in countries like Poland and Lithuania can also be subject to these investigations. Allegedly, the United States has subject prisoners of war to torture there, which would be in contravention of Common Article 3 of the Geneva Convention.
The ICC has long been plagued by allegations of racism and neo-colonialism. Since its inception it has only tried cases originating in Africa, while many crimes have been committed elsewhere. This is partly due to the fact that the ICC is an ancillary court, and it will only use its jurisdiction if a State itself is unwilling or unable to prosecute. War-torn nations in central Africa have been unable to provide that kind of justice, but that is of course not a uniquely African issue. Nevertheless, with investigations into Israel and Afghanistan ongoing, we are seeing that the ICC is ambitiously broadening its scope beyond the continent of Africa.
So, NSG. As the Pinnacle of Justice, the Final Appeals Forum, what say thee?
In my opinion, this is a legally sound decision. Indeed, according to the Rome Statute, the Prosecutor is free to investigate the situation in Afghanistan, since Afghanistan is party to the Rome Statute. Any crimes committed by its nationals or on its territory are subject to the jurisdiction of the Court. The question whether the Taliban or the US will cooperate is not important for the question whether investigations need to be opened. By the time the investigations are done, the political situation might have changed. More importantly, the willingness of perpetrators to assist in the adjudication of crimes should not be the prime determiner in the question whether those crimes should be adjudicated. In my opinion, that question is one of convenience, not of law.
However, this question is broader than merely the question whether the Pre-trial chamber erred. More broadly, given that the investigation is lawful, what do you think will come out? Should US personnel be tried if the investigation finds that they committed crimes under the jurisdiction of the Court? What crimes do you think have been committed?
(Note: I got this info by watching the live stream of the decision, once news stories become available I will share those here)
