The International Criminal Court is an essential step for lasting peace in Afganistan
On March 5 2020, the International Criminal Court authorized an investigation into the alleged war crimes and crimes against humanity committed on or after May 1, 2003 in Afghanistan. ICC prosecutor Fatou Bensuda requested an investigation in 2017, but that request was denied in an April 2019 Pre-Trial Chamber. This time, the Appeals Court made a decision to overturn the Pre-Trial Chamber judgement, opening the way for an investigation. The subject of the Chief Prosecutor’s inquiry includes the Afghan government, Taliban, and U.S. forces. In response to this decision, U.S. Secretary of State Mike Pompeo declared that the government will protect U.S. soldiers from the ICC (see related CNN article).
The ICC is the first world court with the jurisdiction to prosecute and punish an individual who has committed atrocity crimes across national borders. Currently, 123 countries accept the jurisdiction of the ICC. Major countries include all EU countries, Canada, Australia, New Zealand, South American countries, many African countries, and 19 Asian countries including South Korea and Japan.
In 2005, I visited the Kalma camp in Darfur, Sudan. As a new senator of Japan and member of Medecins du Monde (Doctors of the World), I closely followed the Darfur genocide and felt strongly about visiting Sudan with the goal of raising awareness back in Japan. At the time of my visit, Kalma was the largest camp of internally displaced people in Sudan — there were about 90,000 refugees living there. I saw misery. In the camp we talked about what we could do to help. The doctors were overwhelmed. President Al Bashir’s forces and the Janjaweed were carrying out an ethnic cleansing campaign against Darfurians, using rape as a terrible tool of genocide, and little was being done by the international community to deal with the cause of the conflict. To help, the only thing I felt I could do was to get Japan to ratify the ICC court statutes. This started my two years successful effort for Japan’s ratification of the ICC. (see Reuters article)
The ICC exercises jurisdiction based on the principle of complementarity, meaning it takes up its jurisdiction only when the country’s domestic criminal justice system is deemed as non-functioning. In March 2009, an arrest warrant was issued for President Al Bashir on suspicion of mass killing, systematic rape and looting in the Darfur region. It was the first time that a head of state was prosecuted. The Sudanese government initially refused to cooperate with the ICC, but on 11 February 2020, the government finally agreed to hand Mr. Bashir over to the court. The international community showed that there will be no impunity of “crimes that shock the conscience of mankind” even if the suspect is a head of state.
Critics of the ICC often ask “Why Africans only?” Indeed, the official investigations taking place at this moment are against: Uganda, Democratic Republic Congo, Central African Republic, Sudan, Kenya, Libya, Ivory Coast, Mali, Georgia, Burundi, Bangladesh/Myanmar, Afghanistan, and Sudan. The majority of the cases are in African countries. I’ve spoken with several individuals who have asked why doesn’t the ICC also go after Britain and the United States for their alleged crimes in Iraq? What about Syria in the terrible humanitarian crisis currently unfolding in front of our very eyes?
In the case of Syria, about a million refugees have fled the country to escape attacks targeting the civilian population including schools and hospitals. More than a million people are now forced to live on the streets in the northern part of the Idlib region, and severe airstrikes by the Assad regime and Russia include the use of cluster bombs. The UN resolution which tries to bring this situation to the ICC has been systematically blocked by Russia with the use of 13 vetos. Under these conditions, it is no wonder that the ICC is considered powerless against the super powers, and that it is called out as a partial court targeting only or mainly Africans.
When the ICC Pre-Trial Chamber rejected the request for an investigation into Afghanistan in April 2019, there were serious doubts about its validity as an impartial court. Fortunately, the Appeals Court has now ruled in favor of an investigation. I strongly suggest that the US cooperate with the ICC investigation. Currently the US continues to take steps against the ICC like rescinding the ICC prosecutor’s Visa to enter the US and restricting military aid to ICC state Parties. An ICC investigation should not be seen as an attack on the US, but rather as a way to take the first steps to lasting peace in Afghanistan. A successful ICC investigation could bring greater transparency on the war in Afghanistan and the role different institutions played. That transparency will come through the justice provided by an impartial international court. And that justice could give the citizens of Afghanistan a first step towards lasting peace by strongly encouraging military withdrawal.
