Last Hope Fading for War Crimes Probe in Afghanistan

THE HAGUE (CN) — Final arguments were made Friday before the International Criminal Court on whether it should investigate crimes and human rights violations committed in Afghanistan by all parties to the conflict.

Despite the U.S. government’s lack of official presence in the courtroom, U.S. policy and the Trump administration played a central role in the rebuttal arguments made after three days of hearings.

“Leadership flows from the top, and right now it is not a very honorable outcome,” said  David J. Scheffer, director of the Center for International Human Rights, who led the U.S. negotiating team during the creation of the International Criminal Court.

Created by the Rome Statute in 2002, the ICC is the world’s only global court for crimes against humanity. The United States signed but did not ratify the treaty, and declined an invitation by the court to participate in this week’s hearings.

When he made his remarks, Scheffer was sitting next to Jay Sekulow, one of President Donald Trump’s personal lawyers, who was representing the conservative legal organization, the European Center for Law and Justice. The organization has filed one of nearly two dozen amicus briefs in the appeals case.

Sekulow did not look at Scheffer during his 15-minute presentation.

The ICC prosecutor’s office, the government of Afghanistan, five groups representing victims and more than 20 nonprofit groups were heard in the three days of hearings on whether the Hague-based court should open an investigation into war crimes allegedly committed by the Taliban, the Afghan government and the U.S. armed forces during more than 16 years of war.

ICC prosecutor Fatou Bensouda sought authorization to initiate proceedings in 2017 but the request was denied in April this year by the ICC’s three-judge Pretrial Chamber. Bensouda and victims appealed that ruling, leading to the hearings that began Wednesday.

The denial came a week after the U.S. government revoked Bensouda’s visa to the United States.

She found in her preliminary investigation that there was “a reasonable basis to believe that … crimes within the court’s jurisdiction have occurred,” including torture by CIA agents at so-called black sites.

“I’m sure you will not let threats aimed at undermining the rule of law to impact your judgment,” Fergal Gaynor told five-judge panel in his closing statements. He is one of the attorneys representing a group of 86 victims.

The Friday hearing was shortened after a ruling on Thursday that victims did not have a right to appeal, but the Appeals Chamber would consider the appeal of the prosecutor.

The government of Afghanistan opposes the investigation, but Nema Milaninia, an attorney representing 17 Afghan human rights organizations, told the court, “Peace first and then justice has resulted in neither peace nor justice.”

The prosecutor’s office echoed this sentiment.

“Afghanistan is unable and unwilling to bring charges against its own forces,” said Fabricio Guariglia, who has been representing the prosecutor’s office during the hearings.

The ICC is seen as a last resort when nations cannot or will not prosecute serious crimes.

The Trump administration sees this investigation, and the court generally, as a breach of national sovereignty.

“The ICC claims near-universal jurisdiction over the citizens of every country, violating all principles of justice, fairness, and due process,” he told the U.N. General Assembly last year. It is unlikely that a U.S. citizen will ever be brought before the court.

As nearly two decades already have passed since the conflict began and both Afghanistan and the United States are unwilling to cooperate with any investigation, even if the Appeals Chamber allows the investigation to move forward, it’s unlikely that charges will be brought.

“It is unlikely that victims will ever see justice. But if you deny this appeal, they certainly will not,” Gaynor told the judges.

A verdict is expected next year.

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