The Appeals Chamber of the International Criminal Court (ICC) in the Hague has been in session this week, as victims of alleged war crimes and crimes against humanity in Afghanistan challenge the Court’s decision not to open an investigation.
Thousands of victims came forward to share their stories with the Prosecutor when she began her preliminary investigation, but in April 2019, the court ruled that the refusal of states to co-operate, the difficulty of gathering evidence in Afghanistan and the time that has elapsed since the alleged crimes meant that an investigation “would not serve the interests of justice”. The court had never previously rejected a Prosecutor’s request to open an investigation.
The decision, which came days after the Prosecutor’s US visa was revoked, was widely perceived to be a result of US pressure.
This week the Appeals Chamber heard about the devastating impact of alleged war crimes by US personnel, Afghan security forces and the Taliban. “Every family, every child in our country has been affected by gratuitous attacks on civilians,” testified one Afghan representative. “So many ordinary lives have been ruined forever.”
Reprieve was in court on behalf of Ahmed Rabbani, a Pakistani taxi driver who was rendered to Afghanistan by the US and tortured for 540 days including in the infamous ‘Dark Prison’ near Kabul. The appeals chamber heard that the CIA torture and rendition programme “was designed to avoid any jurisdiction… The court’s decision leaves victims of the torture programme outside of the scope of the investigation with no remedy, no effective investigation, no accountability.”
A representative of three former United Nations rapporteurs said: “Declining to authorise an investigation because the relevant states refuse to cooperate is not in the interests of justice but, rather, supports impunity… It is precisely for situations like this that the ICC exists.”
“Justice is justice,” Prof. David Scheffer, former U.S. Ambassador at-Large for War Crimes Issues, told the chamber. “Do not massacre the term with undocumented and highly selective explanations that can only invite allegations of political bias or manipulative pressure from great powers.”
The hearing comes at a time where both the US and UK are trying to block investigations into abuses they oversaw during the war on terror era. The UK Government is facing a High Court challenge of its failure to hold a judge-led inquiry into war on terror era abuses. In the US Donald Trump recently intervened in three war crimes cases, pardoning two service members and restoring the rank of a third.
Reprieve director Maya Foa said: “These victims have been denied justice in every domestic court available to them. The ICC represents their only hope of any kind of accountability for the terrible abuses they suffered. At a time when states are making concerted efforts to block investigations into torture, rendition and war crimes, its role as a court of last resort is more important than ever. Shutting down the Prosecutor’s investigation would send an alarming signal that we are entering a dangerous new era of impunity.”
“At a time when Donald Trump is using his power to pardon those who have committed war crimes, it is imperative that the ICC put an end to U.S. impunity for torture,” said Katherine Gallagher, Senior Staff Attorney at the Center for Constitutional Rights. “More than 15 years without accountability for serious international crimes by the Bush administration has only reinforced Trump’s belief that he can absolve and commit serious human rights violations without consequence. We pressed the Appeals Chamber at this historic hearing to the authorise the investigation into the U.S. torture program and finally bring an end to this era of impunity for torture.”
“The U.S. Torture program was a systematic, calculated effort to create a legal black hole and place individuals outside the protection of the law and the jurisdiction of the courts,” said Margaret Satterthwaite, Director of the Global Justice Clinic at NYU School of Law. “Our client, who was victimised by this program, was kidnapped, secretly detained and tortured in US-run secret prisons for over a year. Telling his story before the International Criminal Court this week highlighted the gravity of these abhorrent crimes and brought us one step closer to achieving long-denied accountability.”