Justice or impunity?

The International Criminal Court (ICC), at The Hague, Netherlands, has approved the investigation of war crimes committed in Afghanistan during the American occupation. Fatou Bensouda, the chief prosecutor, is leading the investigation. Last April, the pretrial chamber of the court had denied her request as it “would not serve the interests of justice” because the US and Afghan governments would not cooperate. The US is not an ICC member but Afghanistan is.

The reversal of the lower chamber’s decision was hailed by human rights group around the world as a positive development for achieving justice. “The ICC Appeals Chamber’s decision to greenlight an investigation of brutal crimes in Afghanistan despite extreme pressure reaffirms the court’s essential role for victims when all other doors to justice are closed,” said Param-Preet Singh, the associate international justice director at Human Rights Watch. The decision has the potential to bring Americans, both soldiers and government officials, to the court as defendants in the prosecution of war crimes in Afghanistan.

Bensouda said that the court has enough information to prove that US forces in Afghanistan had “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence”. The sweeping investigation would also look in the war crimes committed by Afghan government forces, the Taliban, and other anti-government forces and groups. The UN Mission in Afghanistan has documented about 17,000 civilian killings by the Taliban since 2009. Yet, a 2019 UN report found that the US and Afghan forces had killed more civilians in the first three months of 2019 than the Taliban.

Needless to say, the court’s decision to give the green signal to an investigation that could potentially see Americans be treated unexceptionally has infuriated the Trump administration. Secretary of State Mike Pompeo called the court’s ruling a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body”. Sure, the court was “masquerading as a legal body” till it was only prosecuting leaders of poor African countries. Would the ICC be able to prosecute the most powerful war criminals of the world?

Around the time when the court was established, president Bush enacted a law called The American Service-Members’ Protection Act (APSA). The law, which is also dubbed in the Netherlands as the “Hague Invasion Act”, allows the US to prevent the ICC from prosecuting any American or a citizen of a US allied country from prosecution, even if it requires the US to use force and invade the Netherlands.

No wonder Secretary Pompeo said, “we will take all necessary measures to protect our citizens from this renegade, unlawful, so-called court… We’re going to take all the appropriate actions to ensure that American citizens are not hauled before this political body to settle political vendettas.” In 2018, the then national security adviser to President Trump had said, “If the court comes after us, we will not sit quietly.” This was not an idle threat. The Dutch know what it means: an invasion of their country. Their only defence against that invasion right now is the coronavirus scare or if the court drops the prosecution.

The Trump administration does not mind throwing justice out of the window. It wants to stop any prosecution of war crimes even if they were committed by the Taliban. Trump would let America’s erstwhile enemies evade potential prosecution so America can have its impunity. America was in Afghanistan claiming to bring democracy, women rights and social development for the Afghan people. Today, it wants to avoid the prosecution of the killers of those very people so it can avoid any prosecution of its own. The entire idea of justice is to kill impunity, but maybe in a different world. For now, justice would have to die at the hands of impunity.

Published in The Express Tribune, March 19^th, 2020.

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