Will justice prevail or The Hague be invaded?

Howard Zinn once said that small acts, when multiplied by millions of people, can transform the world. The International Criminal Court (ICC) prosecutor, Fatou Bensouda, has decided to request judicial authorisation to open an investigation into crimes that have been committed during the armed conflict in Afghanistan. She has concluded that all the legal criteria required under the Rome Statute, the statute that established the ICC, have been met to commence an investigation.

The request, due to the limited temporal scope of the Court’s jurisdiction, will focus on war crimes and crimes against humanity allegedly committed in Afghanistan since May 2003. The authorisation sought will also focus on war crimes committed since July 1, 2002 on the territories of other countries that are parties to the Rome Statute.

Given the authorisation, Bensouda said that her “office will investigate, within its mandate and means, in an independent, impartial and objective way, crimes within the ICC’s jurisdiction allegedly committed by any party to the armed conflict”. The words ‘any party’ above are unprecedented in that the United States is a party to the conflict. This could potentially ensnare the Americans.

Bensouda’s statement doesn’t name any party. However, in a 2016 report by her, she specifically said that there was “reasonable basis” to believe that (1) war crimes and crimes against humanity have been committed by the Taliban and the Haqqani Network, (2) war crimes of torture and related ill-treatment committed by the Afghan government forces, national police, and Afghan intelligence agency, (3) war crimes of torture and related ill-treatment by the US military and the CIA mainly in the 2003-2004 period and allegedly to have continued in some cases until 2014.

The US signed the Rome Statute under Clinton but didn’t ratify it. Afghanistan is a member state. While the US is not a member state, the court’s jurisdiction covers crimes committed on a member-state’s territory — regardless of the nationality of the perpetrator. Therefore, technically the court can cover the crimes committed by US forces in Afghanistan. Bensouda’s 2016 report stated that there is a “reasonable basis to believe” that the US forces in Afghanistan subjected “at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014.” The report also puts the blame for “more than 17,000 civilian deaths” on the Taliban and other anti-government armed groups.

This is a fearless effort. However, one must take the possibility of Americans being prosecuted by an international court especially the ICC with a grain of salt. Given the existence of The Hague invasion law, the possibility of Bensouda achieving any justice would be less than the possibility of her getting the Netherlands invaded. It’s a bit of a stretch but within the realm of possibility.

Responsibility to protect and other innovative forms of humanitarian interventions are always invoked before attacking another country. That the invasion or attack is done in order to protect the native people from being subjected to the atrocities of their own government. It is because big powers that use that justification always subject other countries’ people to atrocities. The US and the UK, except on occasion, do not kill their own people with drone strikes, chemical weapons, cluster bombs, and so forth. Therefore, the argument always has to be that “that leader is killing his own people” so we are going to defend the defenceless population.

Nevertheless, Bensouda’s efforts are positive in many ways. It would buy some credibility for the court as it is criticised for only punishing the leaders of poor African countries and not touching the leaders of strong countries who are far bigger criminals.

Published in The Express Tribune, November 9^th, 2017.

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