Senior judges at the international criminal court have authorized an investigation into alleged war crimes and crimes against humanity in Afghanistan , overturning an earlier rejection of the inquiry.
The ruling by the ICC’s appeals chamber in The Hague is likely to infuriate the Trump administration , which has condemned the request from the court’s chief prosecutor, Fatou Bensouda, to examine the actions of US soldiers in Afghanistan.
Last year the ICC rejected the request and said any investigation and prosecution was unlikely to be successful because the expectation was that those targeted, including the US, Afghan authorities and the Taliban, would not cooperate.
The US secretary of state, Mike Pompeo, said at the time that Washington would revoke or deny visas to ICC staff seeking to investigate alleged war crimes and other abuses committed by US forces in Afghanistan or elsewhere. Bensouda later confirmed that her US visa had been revoked.
On Thursday the ICC’s appeals chamber said the lower court had misinterpreted some of the court’s rules, and it declared that the investigation should be allowed to go ahead. It also lifted some restrictions previously imposed on the scope of the inquiry.
Reading out the decision, the chair of the appeals tribunal, Piotr Hofmański, said: “The prosecutor is authorized to commence investigation in relation to events dating back to 2003 as well as other alleged crimes [related to] Afghanistan. ”
Hofmanski said Bensouda should not limit her investigation to preliminary findings as this would “erroneously inhibit the prosecution’s truth-seeking function”.
Both Afghanistan and the US have opposed the investigation. The US government refuses to cooperate with the global court.
Bensouda asked judges in November 2019 to authorize a full-scale investigation following a preliminary investigation that lasted more than a decade .
She has said there is information that members of the US military and intelligence agencies committed acts of torture, cruel treatment, outrages upon personal dignity , rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the early years of the conflict.
She has also said the Taliban and other insurgent groups have killed more than , (Afghan civilians since 2009 and that Afghan security forces are suspected of torturing prisoners at government detention centers.
Preetha Gopalan, the deputy head of UK litigation at the human rights organization Reprieve, said: “This decision is welcome news to everyone who believes that the perpetrators of war crimes should not enjoy impunity, no matter how powerful they are .
“This is the first time the US will be held to account for its actions, even though it tried to bully the ICC into shutting this investigation down. That the ICC did not bow to that pressure, and instead upheld victims ’right to accountability, gives us hope that no one is beyond the reach of justice.”
Ahmed Rabbani, a Pakistani taxi driver who was rendered to Afghanistan and tortured for 823 days by US personnel, was among the victims who supported the appeal. He has been held in Guantánamo since without charge or trial.
In a statement released through Reprieve, he said: “If the people who tortured me are investigated and prosecuted, I will be very happy. I would ask just one thing from them: an apology. If they are willing to compensate me with $ 1m for each year I have spent here, that will not be enough. I am still going through suffering and torture at present. But I would be happy with just three words: ‘We are sorry.’ ”
The decision last year to halt the investigation provoked dismay among international human rights organizations and allegations that the ICC had caved in to bullying by the Trump administration.
One line of investigation the ICC prosecutors were following involved the CIA’s alleged mistreatment of detainees.
The ICC, which began operations in The Hague in , is a court of last resort for war crimes, genocide and crimes against humanity allegedly committed by nationals of a signatory state or that allegedly took place on the territory of one of its member states.
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