ICC Decides Not to Investigate War Crimes in Afghanistan Conflict

International Criminal Court 
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On April 12, 2019, the three judges of the Pre-Trial Chamber II of the International Criminal Court (ICC) unanimously declined to authorize the Prosecutor’s request to conduct an investigation into the situation in Afghanistan. [ICC Press Release] The investigation was set to examine alleged war crimes and crimes against humanity related to the conflict in Afghanistan, and to examine the responsibility of the Taliban and other armed groups, and of Afghan and United States armed forces. See ICC, Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, 12 April 2019, paras. 15, 18-24. Despite the Pre-Trial Chamber’s determination that the Prosecutor’s request was credible and met the jurisdictional and admissibility requirements, the Pre-Trial Chamber rejected her request to proceed because it determined the investigation would not serve the “interests of justice” given the limited prospects of a successful investigation that would lead to prosecutions. See id. at paras. 87, 96. Many observers have described the Court as caving to political pressure from the U.S., while others view the decision as a pragmatic use of the Court’s resources. [Amnesty International; Just Security] The Pre-Trial Chamber’s decision came shortly after the U.S. revoked the ICC Prosecutor’s visa to the U.S. and threatened to sanction the Court should it pursue cases against American citizens. [IJRC] The Office of the Prosecutor indicated it “will further analyse the decision and its implications, and consider all available legal remedies” in response. [ICC Statement]

Procedural Background

A preliminary examination on Afghanistan initially opened in 2006. See Situation in the Islamic Republic of Afghanistan, 12 April 2019, at para. 44. However, the Prosecutor has faced a many obstacles since then, primarily as a result of the lack of cooperation from the authorities under investigation—a reason cited by the Pre-Trial Chamber for rejecting this investigation. See id.

In November 2017, the Prosecutor submitted a request for authorization to initiate an investigation proprio motu pursuant to Article 15 of the Rome Statute. See Situation in the Islamic Republic of Afghanistan, 12 April 2019, at paras. 2, 5, 29. The Prosecutor’s requested authorization to investigate the alleged crimes under the ICC’s jurisdiction that have taken place in Afghanistan since May 1, 2003 (the date that the Rome Statute entered into force in Afghanistan), and alleged crimes that “have a nexus to the armed conflict” but have been committed outside of Afghanistan, in the territory other States parties to the Rome Statute, since July 1, 2002. See id. at para 5.

The Prosecutor provided evidence indicating that since June 19, 2002, the country has been in a state of non-international armed conflict between various armed groups against both the Afghan government and international armed forces supporting the government. See id. at para. 16. Since that time, the evidence shows that in the context of the thousands of civilian deaths that have taken place, many are likely to constitute crimes against humanity and war crimes. See id. at para. 15. The request classifies the crimes into three categories according to the alleged perpetrators: (1) the Taliban and other non-state armed groups, (2) the Afghan armed forces, and (3) U.S. armed forces and the U.S. Central Intelligence Agency (CIA). See id. at paras. 17, 18-24. A fourth category was included addressing “other acts by members of international armed forces,” which held out the possibility of uncovering crimes resulting from military operations or torture committed by international armed forces other those falling within the other three categories, but indicated that more information is required to determine whether these events constitute crimes under the Court’s jurisdiction. See id. at para. 25.

A significant number of victims submitted representations to the Pre-Trial Chamber complimenting the information provided by the Prosecutor. See id. at para. 28. In total, the Pre-Trial Chamber received 794 representations on behalf of 6,220 individuals, 1,690 families, 26 villages, one institution, and millions of victims. See id. at para. 27.

The Pre-Trial Chamber’s Analysis

In deciding whether or not to authorize the Prosecutor’s request proprio motu, the Pre-Trial Chamber must make a determination as to whether there is a “reasonable basis” to initiate an investigation and whether the jurisdictional requirements are met before authorizing the investigation. See id. at para. 29. This scenario is distinct from situations in which a State or the United Nations Security Council refers a situation in that the Pre-Trial Chamber exercises heightened discretion, ensuring that all requirements set out in Article 53(1) of the Statute are met. See id. para. 30. In addition to determining whether a “reasonable basis” exists, the Pre-Trial Chamber will consider whether an investigation would “serve the interests of justice,” which requires a consideration of the gravity of the crimes alleged, the interests of the victims, and the feasibility of the investigation under the circumstances. See id. at paras. 33-35.

Jurisdiction & Admissibility

Before addressing these issues, the Pre-Trial Chamber determined whether the crimes alleged fall within the jurisdiction of the Court and whether the request met the admissibility requirements laid out in the Rome Statute. The Pre-Trial Chamber acknowledged that nearly all of the information the Prosecutor provided was based on credible sources and was well-corroborated, stating that “there is reasonable basis to believe that the incidents underlying the Request have occurred.” See id. at paras. 46, 48. It further found that the jurisdictional requirements of ratione loci (the crimes alleged occurred in the territory of a State that is party to the Rome Statute or has accepted the Court’s jurisdiction), ratione materiae (the crimes alleged constitute crimes within the Court’s jurisdiction), and ratione temporis (the crimes alleged occurred after the Rome Statute came into force in the State) had all been met. See id. at paras. 45, 49, 60, 87. With respect to admissibility, the Pre-Trial Chamber was satisfied that the two-fold assessment required under Article 17 of the Rome Statute had also been met: whether the States involved are not or have not conducted their own judicial proceedings on these issues (complementarity), and whether the crimes alleged meet the Court’s severity threshold (gravity). See id. at paras. 71, 75, 77, 79, 86.

Interest of Justice

The final area of assessment the Pre-Trial Chamber undertook was to determine whether under Article 53(1)(c) there are “substantial reasons to believe that an investigation would not serve the interests of justice.” See id. at para. 87. The Pre-Trial Chamber noted that without the existence of a clear definition or other statutory guidance on this matter, it would make the consideration based on the “overarching objectives” of the Rome Statute—that the investigation would aid in “the effective prosecution of the most serious international crimes, the fight against impunity and the prevention of mass atrocities.” See id. at para. 89. It then stated that an investigation could only be considered to serve the interests of justice if it appears likely to result in a legitimate investigation and prosecution of cases within a suitable time frame. See id.

Here the Pre-Trial Chamber stated that three issues were of particular importance to this assessment in the Afghanistan investigation. See id. at para. 91. First, the Pre-Trial Chamber concluded that the amount of time that had passed between when most of the crimes were committed and the submission of the request would make it unlikely that viable evidence would be available. See id. at para. 93. Second, the Pre-Trial Chamber determined that changing political situations in the relevant States, including in States not parties to the Statute, make the prospect of cooperation from the governments involved and the surrender of suspects substantially unlikely. See id. at para. 94. Finally, the Pre-Trial Chamber noted that given the realities of the situation, the investigation would be costly and that this would detract from resources that could be allocated to investigations more likely to result in prosecutions. See id. at para. 95.

Thus, the Pre-Trial Chamber concluded that the potential for a successful investigation was significantly limited and that there was little chance that the objectives of the victims would be furthered by continuing. See id. at para. 96. It also indicated that pursuing an investigation that did not fulfill these aims and would possibly incite “hostility vis-a-vis the Court” and undermine its overall credibility. See id. It ultimately decided the investigation into the situation in Afghanistan would not serve the interests of justice and for that reason, declined the request. See id.

International Reaction

The Pre-Trial Chamber’s rejection of the investigation has been particularly controversial given the implication of U.S. forces in the crimes outlined. The Prosecutor’s information, based primarily on the findings of the U.S. Senate Select Committee on Intelligence, the U.S. Senate Armed Services Committee and the U.S. Department of defense, provided evidence that U.S. forces and the CIA had committed war crimes including torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence “pursuant to a policy approved by the US authorities.” See id. 24.

Human rights experts and legal scholars have denounced the decision to stop the investigation. Human Rights Watch’s Param-Preet Singh said in a statement that the “ICC judges’ decision to reject an investigation in Afghanistan is a devastating blow for victims,” and that “[i]t sends a dangerous message to perpetrators that they can put themselves beyond the reach of the law just by being uncooperative.” [NPR] Biraj Patnaik, of Amnesty International stated that “the decision ultimately will be seen as a craven capitulation to Washington’s bullying and threats,” further weakening the Court’s credibility. [Amnesty International] Legal scholars have expressed their skepticism regarding the Court’s reasoning with respect to “the interest of justice” determination. [Opinio Juris]

Additional Information

The ICC was established by the Rome Statute, and officially opened in 2002. See ICC, About. The Court has the competence to hear four types of crimes, genocide, crimes against humanity, war crimes, and the crime of aggression. See Id. The ICC has had a total of 28 cases, of which the Court issued final convictions in six cases (eight trial convictions, two of which were overturned on appeal). See id. For more information on the International Criminal Court, visit IJRC’s Online Resource Hub. To learn more about the States’ human rights obligations, see IJRC’s Afghanistan Factsheet and United States Factsheet. To stay up-to-date on international human rights law news, visit IJRC’s News Room and subscribe to the IJRC Daily.

African Rights Court Orders Tanzania to Limit Body Cavity Searches

African Court on Human and Peoples’ Rights
Credit: African Court via Flickr

The African Court on Human and Peoples’ Rights (AfCHPR) recently issued its judgment in the case of Lucien Ikili Rashidi v. Tanzania, finding the State violated a non-citizen’s rights when its agents detained him, subjected him to an anal search, and did not resolve his legal claims for seven years after he was arrested for not having his passport and visa in his possession. See AfCHPR, Lucien Ikili Rashidi v. United Republic of Tanzania, App. No. 009/2015, Judgment of 28 March 2019. The AfCHPR found violations of Ikili Rashidi’s rights to residence, freedom of movement, integrity of person, dignity, and to be tried within a reasonable time. Ultimately, the Court awarded Ikili Rashidi and his family modest financial compensation and ordered Tanzania to take measures to ensure that all future cavity searches would be in compliance with international standards, as clarified by the European and Inter-American human rights bodies. See id. The judgment is one of six the AfCHPR released in late March, three of which concern Tanzania. [AfCHPR Press Release] Read more

U.S. Resists International Oversight, Reduces IACHR Funding over Reproductive Rights

Secretary Pompeo Delivers Remarks on the Release of the 2018 Country Reports on Human Rights Practices

In another effort to both curtail international human rights oversight and advance a regressive view of reproductive rights, the United States Department of State indicated in late March 2019 that it would reduce its financial support for the region’s human rights bodies, which have urged States to repeal laws that criminalize abortion without any exceptions. [Washington Post; PAI] U.S. Secretary of State Michael Pompeo announced that the U.S. would reduce its regular contribution to the Organization of American States (OAS), a regional intergovernmental organization with 35 Member States, in an effort to target the Inter-American Commission on Human Rights (IACHR) and the Inter-American Commission of Women (CIM). See U.S. Department of State, Remarks to the Press (Michael R. Pompeo, 26 March 2019); Letter from Lankford et al., U.S. Senators, to Michael Pompeo, U.S. Secretary of State, United States Senate (Dec. 21, 2018).

The announcement follows other recent efforts by the U.S. to undermine international human rights protections or oversight, including revoking the International Criminal Court prosecutor’s visa to enter the U.S., and efforts to weaken the recommendations on women’s reproductive health and rights during the 63rd Session of the Commission on the Status of Women. [Reuters: Prosecutor; The Guardian] Read more

Commission of Inquiry: Israeli Response to Gaza Demonstrations Violated Rights

2018 Gaza border protests, Bureij
Credit: מינוזיג – MinoZig via Wikimedia Commons

In a new 252-page report, the United Nations Commission of Inquiry on the protests in the Occupied Palestinian Territory (CoIOPT or Commission), established by the UN Human Rights Council, presents detailed findings related to its investigation of the demonstrations that took place in Gaza between March 30 and December 31, 2018, the Israeli security forces’ response, and the impact on civilians living in Gaza and Israel. See Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory, 18 March 2019, UN Doc. No. A/HRC/40/CRP.2, para. 1. The CoIOPT finds Israel, Hamas (as Gaza’s de facto authority), and the Palestinian Authority, responsible for human rights violations committed in the context of these protests; notes that the Israeli security forces’ response to the demonstrations gave rise to humanitarian law violations, some of which may amount to crimes against humanity; and highlights the urgent need to revise the Israeli security forces’ rules of engagement. See id. at paras. 980-81, 985. The CoIOPT presents the report with a view to ensuring accountability, proposing concrete recommendations, and identifying State and non-State actors responsible for violations of international human rights and humanitarian law, and international criminal law — the applicable international legal framework to this situation. See id. at paras. 12-13, 37.

While the Commission faced significant limitations with respect to its ability to witness information first-hand, it relied on interviews, meetings with victims, civil society, government officials, and witnesses; it also collected thousands of documents, including medical reports, expert legal opinions, drone footage, and written submissions, among others, to support its findings. See id. at paras. 19-21, 30-36. The Israeli government has since issued a statement rejecting the report’s findings and accusing the Commission of bias against Israel. See Israel Ministry of Foreign Affairs, Israel’s response to UNHRC Commission of Inquiry report, 21 March 2019. Read more

April 2019: UN Treaty Bodies & Regional Body in Session

European Court Of Human Rights
Credit: Anil Öztas via Wikimedia Commons

In April, several universal and regional human rights bodies and experts will review States’ compliance with their human rights obligations through the consideration of State and civil society reports, country visits, and the review of individual complaints. Five United Nations treaty bodies and one pre-sessional working group will hold sessions to assess States’ progress regarding the rights of persons with disabilities, migrant workers’ rights, enforced disappearances, the elimination of racial discrimination, and the prevention of torture. Seven UN special rapporteurs, two working groups, and one independent expert will conduct country visits in April. Additionally, three working groups will hold sessions in Geneva. Of the regional bodies, the European Court of Human Rights (ECtHR) will hold a Grand Chamber hearing.

The UN treaty body sessions may be watched via UN Web TV. The public hearings of the ECtHR can be viewed on the Court’s website. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar. Read more

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EEUU: Uso de fuerza por policía contra afrodescendientes
Credit: IACHR via Flickr

In a new report documenting the forms of police violence against people of African descent in the United States, the Inter-American Commission on Human Rights (IACHR) examines the widespread racial disparities in the American criminal justice system, in light of the State’s international human rights obligations. See IACHR, Police Violence against Afro-descendants in the United States (2018). The report from the region’s principal human rights oversight body examines the factual situation and recommends specific reforms. [IACHR Press Release] Its conclusions are perhaps most succinctly expressed in a note on the cover art, which reads, “the United States has systematically failed to adopt preventive measures and to train its police forces to perform their duties in an appropriate fashion. This has led to the frequent use of force based on racial bias and prejudice and tends to result in unjustified killings of African Americans.” See IACHR, Police Violence against Afro-descendants in the United States.

The report goes beyond current-day excessive use of force to examine the history of racial discrimination in America, modern structural discrimination, over-policing of African American communities, a lack of accountability for excessive use of force, and various racial disparities in the larger criminal justice system. Among its recommendations, the IACHR calls on the U.S. to provide restitution “to remedy the situation of historic, structural discrimination against African Americans,” accountability for killings by police, public apologies and official declarations to restore the dignity and rights of the victims, and human rights training for law enforcement. See id. at paras. 295, 300, 301.

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Forced Sterilization as a Human Rights Violation: Recent Developments

Commission on the Status of Women, New York

In recent years, international advocacy has contributed to increased awareness of forced sterilization as a human rights violation, including as a result of our work at the International Justice Resource Center (IJRC). Around the world, healthcare providers and others continue to sterilize people without their informed consent, most often targeting those who are Indigenous, living with HIV, are persons with disabilities, or who experience discrimination on other grounds. Just this month, IJRC advanced our partners’ advocacy on this issue at the 63rd Session of the United Nations Commission on the Status of Women (CSW), and Human Rights Watch published a report on involuntary sterilization of transgender persons in Japan. The past three years have also seen judgments from regional human rights courts on forced sterilization and important statements from other bodies. This post details the results of advocacy before regional and United Nations human rights bodies, summarizing the growing body of recommendations, statements, and judgments that more fully define forced sterilization as a human rights violation and guide governments in addressing this harmful practice.

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U.S. Supreme Court Rejects Absolute Immunity For International Organizations

Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C.
Credit: Joe Ravi via Wikimedia Commons

On February 27, 2019, the United States Supreme Court held by a vote of seven to one that international organizations do not have absolute immunity from suit in U.S. courts. See Jam v. International Finance Corp., No. 17-1011, slip op. at 2 (U.S. Feb. 27, 2019). Rejecting the International Finance Corporation’s (IFC) argument that international organizations like the IFC maintain absolute immunity from suit in U.S. courts, the Court allowed a case alleging injuries from environmental pollution caused by a power plant that was funded and supervised by the IFC to proceed in a U.S. federal court. See id. at 1-2, 5-6. The Supreme Court held that international organizations are not immune from all suits, such as when those organizations are engaged in commercial activity. See id. at 4, 15. The Supreme Court’s decision now allows the case against the IFC to move forward in U.S. Federal Court in Washington D.C. Although the Supreme Court’s decision did not make a determination on the merits of the case, the Court’s holding opens the door in U.S. courts for other potential suits alleging wrongdoing committed by other international organizations. [Earthrights]

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ICJ: U.K. Rule Over Chagos Prevents Full Decolonization of Mauritius

London July 20 2018 (126) Chagos Islands Protest Trafalgar Square
Credit: David Holt via Flickr

In an advisory opinion issued on February 25, the International Court of Justice (ICJ) concluded that the United Kingdom violated core principles of international law by separating the Chagos Archipelago from Mauritius in the 1960s and continuing to administer the islands as a British territory. See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, ICJ Reports 2019, para. 183. Despite the U.K’s numerous attempts to challenge the Court’s jurisdiction over the matter, the Court ultimately determined that it was competent to address the questions presented and issued its answer. See id. In its opinion, the Court made clear that the U.K’s actions with respect to this former colony run counter to what are now well-established rights of peoples to self-determination. See id. at paras. 177-178. The UN General Assembly is expected to discuss implementation of the advisory opinion, including returning the islands to Mauritius and resolving the status of the thousands of people the U.K. forcibly expelled from Chagos following its agreement with the United States to allow an American military base, and later secret CIA detention site, on the island of Diego Garcia. [Guardian; Nation]

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