US Sanctions Delay ICC Probe On War Crimes In Afghanistan And Palestine

The Chief Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, has officially been sanctioned by the United States for seeking to investigate alleged war crimes committed by the U.S. military in Afghanistan. The sanctions exclusively targeting Bensouda were announced earlier last month following an executive order issued by President Trump in June authorizing asset freezes and family travel bans against ICC officials.

While announcing the designation of sanctions, U.S. Secretary of State, Mike Pompeo, stated that any individual or entity that continues to support the Prosecutor materially risks exposure to sanctions. The decision has been lauded by Israel, also subject to an ongoing ICC investigation initiated by the Prosecutor regarding alleged war crimes in the Gaza strip and the West Bank’s territories.

Bensouda, an African Muslim woman and former Gambian Minister of Justice, has been serving as the most senior prosecutor of the global court since 2012. In her position as Chief Prosecutor of the International Criminal Court, Bensouda is considered one of the most powerful women in the legal world. During her tenure, she has expanded the geographical scope of the Court that has been routinely criticized for singularly targeting African leaders and overlooking potential war crimes committed by more powerful states. In this context, she has initiated investigations in Georgia, Ukraine, Philippines, Myanmar, and now Israel and Afghanistan.

On March 5th 2020, after more than two years, the ICC Appeals Chamber unanimously granted her request to commence an investigation in relation to alleged war crimes and crimes against humanity amounting to serious violations of the four Geneva Conventions of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence, committed on the territory of Afghanistan and later in CIA rendition sites. The investigation seeks to examine the actions of the Taliban and affiliated groups, the Afghan National Security Forces, and the armed forces of the United States of America and its Central Intelligence Agency.

However, in a more unexpected approach, the Appeals Chamber widened the scope of the Prosecutor’s investigation beyond the territory of mainland Afghanistan by approving that it shall also include alleged crimes that have a nexus to the armed conflict in Afghanistan, which includes CIA black sites operated in Poland, Lithuania, and Romania, where Afghan detainees were allegedly taken.

According to a UN report, over ten thousand civilians were killed or injured in the Afghan conflict in 2019 alone, taking the total casualties in the past decade to over 100,000 of which thirty-percent were children. The report also found that of all the civilian casualties caused by international military forces, ninety-six percent resulted from airstrikes, including deliberate targeting. A third of all conflict-related detainees were subject to torture, inhumane or degrading treatment, in contravention of various conventions of international humanitarian and international human rights law.

While the United States vehemently opposed the initiation of the investigation on grounds that it is not a member of the Global Court and therefore falls outside of its jurisdiction, the Appeals Chamber noted in its judgement that since Afghanistan is party to the Rome Statute, and that the preliminary examination showed "reasonable grounds to believe that war crimes had been committed in Afghanistan", the jurisdiction criterion is satisfied.

Late last year, around the same time of the initiation of the Afghan investigation, the Chief Prosecutor announced that that there is a reasonable basis to proceed with an investigation into war crimes that have been or are being committed in Palestine, mainly in the West Bank, including East Jerusalem, and the Gaza Strip.

In the wake of these developments, Israel is advancing new legislation that would allow the use of all means necessary, including its military forces, to defend both Israeli and US troops from the global court. The legislation, if passed, would be the first of its kind, which aims to protect the troops of another State by all means necessary from accountability at a global tribunal.

However, unlike the situation in Afghanistan, an investigation into Palestine is conditional upon a prior ruling of the Pre-Trial Chamber on the scope of its territorial jurisdiction, which effectively means that the Chamber is yet to decide whether it has the legal authority to administer justice in Palestine. Chief Prosecutor Bensouda requested a ruling on territorial jurisdiction of the Court in December last year. The Pre-Trial Chamber is expected to make a decision on this matter in due course.

While it is far from clear whether the Court could pursue a case against a US citizen or have the cooperation of Afghanistan, the United States, and Israel in order to effectively conduct the investigations, the measures taken by Chief Prosecutor Bensouda are unprecedented in international criminal law and give hope to millions of victims of war crimes that truly no one is above the law.

In response to the attacks directed at her office, Fatou Bensouda expressed that while some believe she should withdraw the war crimes probe because it concerns two very powerful states, she has resolved to continue her duties without any fear, in pursuit of international accountability and justice to millions of victims of war crimes in Palestine and Afghanistan. She added: “For me, it’s about the law. It’s not about power.”