UN Criminal Court Asked to Open Afghan War Crimes Probe

Fergal Gaynor, a lawyer representing a group of 86 victims, told the U.N.’s court for atrocity crimes that it is “the only jurisdiction in the world…that can offer the victims a prompt and impartial investigation into the brutal crimes committed against them.”
The ICC prosecutor’s office, the government of Afghanistan, five groups representing victims and more than 20 non-profit groups will be heard in the case, which seeks to investigate war crimes allegedly committed by the Taliban, the Afghan government and the United States armed forces during the ongoing conflict in the Middle Eastern country.
ICC prosecutor Fatou Bensouda sought authorization to initiate proceedings in 2017, writing that “there is a reasonable basis to believe that…crimes within the court’s jurisdiction have occurred.”
That request was denied in April when the ICC’s pretrial chamber, a panel of three judges, pointed to the “scarce cooperation obtained by the prosecutor” during the preliminary investigation.
The denial came a month after U.S. Secretary of State Mike Pompeo announced that the Trump administration planned to revoke or deny visas to anyone from the ICC involved in the Afghanistan investigation.
The prosecutor and several groups appealed the denial and Wednesday marked the first day of hearings in that appeal.
It is unclear whether victims are allowed to appeal under the Rome Statute, the 2002 treaty that established The Hague-based ICC. The five-judge appeals chamber agreed to hear the dispute and much of Wednesday’s oral arguments focused on whether the appeal should be allowed to proceed.
Megan Hirst of Doughty Street Chambers, arguing on behalf of one group of victims, told the judges that the court is in danger of falling behind the standards of international justice if it does not allow the victims to appeal the investigation denial.
Both the U.S. and Afghanistan oppose the investigation. One of President Donald Trump’s personal lawyers, Jay Sekulow, spoke during the hearing on behalf of the European Center for Law and Justice, a conservative legal organization that filed an amicus brief in the case.
“The fact is that the United States has a very comprehensive system of military justice,” Sekulow told reporters after the hearing. The U.S. never joined the ICC and the Trump administration sees the investigation as an encroachment on U.S. sovereignty.
Homayoon Azizi, Afghanistan’s ambassador to the Netherlands who will be speaking Thursday, also takes the view that this investigation is an overreach.
“It is our responsibility to bring justice for our nation,” he said in an interview.
Seventeen human rights groups from Afghanistan disagreed.
“Afghan victims and Afghan society overwhelmingly favor appellate resolution and the opening of an ICC investigation,” Human Rights Organizations in Afghanistan, an umbrella group, wrote in an amicus brief.