(CN) — Exactly one week after the United States revoked its prosecutor’s visa in apparent retaliation for requesting a torture probe, the International Criminal Court rejected that investigation on the grounds that “lack of cooperation” limited its chance of success.
“The prosecutor emphasizes that the preliminary examination on Afghanistan opened in 2006 and has since been hampered by a number of severe constraints and challenges, resulting mainly from the lack of cooperation by various authorities,” the three-judge panel noted in a 32-page decision on Friday.
More than two years have passed since the court’s prosecutor Fatou Bensouda first found “reasonable basis to believe” that the Taliban and U.S. military forces committed war crimes in Afghanistan. She requested an investigation that would look into both matters along with the CIA’s conduct at black sites.
In rejecting that request today, the panel did not fault Bensouda for failing to meet any of its standards.
“In summary, the chamber believes that, notwithstanding the fact all the relevant requirements are met as regards both jurisdiction and admissibility, the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited,” the court found.
Often described as the “court of last resort,” the ICC steps in only when countries that fall under its jurisdiction fail to prosecute war crimes on their own, but today’s ruling suggests that noncompliance by countries harboring suspected war criminals can scuttle an investigation.
“It is worth recalling that only victims of specific cases brought before the Court could ever have the opportunity of playing a meaningful role in as participants in the relevant proceedings; in the absence of any such cases, this meaningful role will never materialize in spite of the investigation having been authorized; victims' expectations will not go beyond little more than aspirations,” the ruling states. “This, far from honoring the victims' wishes and aspiration that justice be done, would result in creating frustration and possibly hostility vis-a-vis the court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve.”
The Center for Constitutional Rights, a New York-based group representing torture victims, denounced the decision as rewarding intimidation.
"With its decision today, the International Criminal Court sends a dangerous message: that bullying wins and that the powerful won’t be held to account,” its attorney Katherine Gallagher said in a statement. “In bowing to the pressure campaign of the Trump administration, the pre-trial chamber—and the member states who have failed to adequately resource and support the court—accepts impunity.”
For the Trump administration, an “America First” foreign policy has translated to undermining several U.N.-affiliated institutions, including the Human Rights Council, UNESCO and of course, the ICC.
President Trump lashed out at the latter during his most recent speech before the U.N. General Assembly.
“As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority,” Trump declared late last year.
“The ICC claims near-universal jurisdiction over the citizens of every country, violating all principles of justice, fairness, and due process,” Trump had added. “We will never surrender America’s sovereignty to an unelected, unaccountable global bureaucracy.”
The United States never fully accepted the ICC’s jurisdiction. The Clinton administration signed the Rome Statute in 2000, but the Senate never ratified it.
The ICC’s prosecutor claims jurisdiction based on the facts that the U.S. military and the CIA operated in countries that have enacted the treaty, such as Afghanistan, Poland, Lithuania and Romania. That argument also passed the panel’s muster, but only for detainees captured in Afghanistan, a party to the Rome Statute.
Judges Antoine Kesia-Mbe Mindua, Tomoko Akane, and Rosario Salvatore Aitala issued their decision unanimously.
Mindua, the Congolese presiding judge who previously served in the International Criminal Tribunal for the former Yugoslavia, intends to write a separate concurring opinion “in due course.”
Vowing to "consider all available legal remedies," Bensouda's office noted that chamber agreed with her determination that "there is a reasonable basis to believe that crimes under the jurisdiction of the International Criminal Court have been committed in Afghanistan, and that the jurisdictional requirements of gravity and admissibility have been met."
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