Contributed by Jim Hayes

The International Criminal Court (ICC) ruled on 5 March 2020, that the United States, the Afghan government and the Taliban should be investigated for war crimes. This includes intentional attacks against civilians, imprisonment and extra-judicial executions.

ICC Chief Prosecutor Fatou Bensouda, has been seeking a formal investigation into the alleged crimes since 2017. The preliminary investigation was carried out over more than a decade.

Statement of #ICC Prosecutor #FatouBensouda following the Appeals Chamber’s decision authorising an investigation into the Situation in #Afghanistan

Video from the International Criminal Court

The ICC is a United Nations related inter government legal authority based in the Hague, with the set objective of trying individuals for genocide, crimes against humanity, and aggression. Most countries are members.

In April 2019, 2019 a pretrial chamber at the ICC ruled that the investigation should not go ahead. The reason was that it would not “serve the interests of justice,” as it would not be likely to lead to a prosecution. This decision was not based on legal argument but the view that nations would not cooperate.

At an appeal hearing on 5 March 2010, presided over by a panel led by judge Piotr Hofmanski, concluded that the original pretrial judges had made a mistake and exceeded their authority.

Political pressure has been used to try and derail proceedings. Washington put travel restrictions on ICC personnel last year.

The United States does not support the ICC, because it holds that US citizens should never fall under its jurisdiction. This has been consistent, and the argument is being applied to this case. This has not precluded the United States from supporting ICC investigations and prosecutions, when it comes to its own perceived enemies.

Washington has gone as far as to pardon military personnel accused of war crimes under US law. It is no surprise that the same approach would be applied to the ICC ruling.

An investigation and likely prosecutions are set to go ahead anyway.

US Secretary of State Mike Pompeo said the ruling was “reckless” and vowed to protect Americans from it. So it is unlikely that those who may charged will be punished. But this does create a diplomatic and political climate, which opens the United States to be accused of operating double standards. One for itself and another for everyone else. It has the potential to further weaken its global standing.

This comes on the heals of years of failed intervention and war in Afghanistan, which has ended in signing an agreement that effectively hands over political power to the Taliban – the original target of the invasion. These circumstances have made the vitriol coming out of Washington particularly aggressive.

Pompeo accused the ICC of being “unaccountable, political …[and] masquerading as a legal body…”. This is not true. After all, the ICC is recognised as a legal body by most of the world and is presided over by qualified judges, operating under a normal judicial environment. It may suffer the limitations and sometimes political influences that is characteristic of all judicial bodies. Does this justify US exceptionalism?

Pompeo’s salvo an angry retort in an awkward situation.

In the past the ICC has been accused of over concentration on politically weak smaller nations and ignoring the more powerful. This case is a significant turnaround, and may well indicate a shifting of global power, away from the regime of American dominance, to one where there are several centres of influence and nations are beginning to act more independently.

This makes the case even more important than it would otherwise be.