The International Criminal Court recently rejected a proposal to open an investigation into possible war crimes and crimes against humanity committed during the Afghan conflict. The decision has received backlash, notably from Param-Preet Singh, the associate criminal justice director of Human Rights Watch. In an editorial, Singh says “The decision [of the Court] effectively slammed the door in the faces of victims and their families who have had no recourse to justice.”
Singh notes the atrocities committed during the conflict, including the torture, rape, and murder of civilians by the Taliban and abuses by foreign forces, such as the United States. The Court’s judges said they agreed with the argument brought by the prosecutor that there was reasonable basis crimes had been committed that fell under ICC jurisdiction. They further agreed that those most responsible for the crimes had not yet been brought to justice. But, when the judges assessed whether the Court should proceed with the investigation, they decided moving ahead would not be in the “interest of justice.”
According to the Court, continuing with the investigation would only serve the “interest of justice” if it would lead to the successful prosecution of cases within a reasonable amount of time. For the judges, the case would most likely not meet this goal. Singh breaks down the reasons for the decision, including ICC resource restraints, the political instability of Afghanistan and the impact the investigation may have on the United States. But, Singh says that this ruling sets a dangerous precedent for future cases.
“But what’s new and disturbing is the judges’ use of the amorphous ‘interests of justice’ to allow these political and practical considerations to neuter the ICC’s mandate,” Singh writes. She says following the judges’ logic, the Court should only examine cases where cooperation by states is guaranteed. “In doing so, [the ICC have] handed states a playbook to insulate themselves from the law’s reach.”
There is potential for an appeal of the Court’s decision. But as it stands, the ICC will not investigate the ware crimes and crimes against humanity committed in Afghanistan.