THE HAGUE, Netherlands (CN) – A lawyer for victims argued Thursday that an International Criminal Court panel overstepped its authority by denying a prosecutor’s request to investigate possible war crimes committed in Afghanistan by U.S. and Afghan forces.
The case is a complicated one, involving power struggles within The Hague-based ICC itself, novel legal arguments and a country divided between its government and its human rights groups.
Wednesday’s arguments focused heavily on the question of whether victims themselves, rather than states, can appeal decisions made by the only global court for atrocity crimes.
“Victims, however, do not have the right to trigger proceedings…. That right is reserved for the prosecutor,” Presiding Judge Piotr Hofmański ruled at the outset of the hearing on Thursday, resolving at least one issue in the case.
The five groups representing victims in the case will, however, be allowed to submit arguments for the remainder of the hearing.
The ICC’s top prosecutor, Fatou Bensouda, requested authorization in 2017 to open an investigation into possible war crimes and crimes against humanity committed by the Taliban, Afghan police and security forces, and U.S. military and intelligence forces.
That request was denied in April when the ICC’s pretrial chamber, a three-judge panel, found that a lack of cooperation from both Afghanistan and the United States meant it was unlikely the prosecutor would be able to collect sufficient evidence in the case.
It was the first time in the court’s 17-year history that judges have rejected an investigation request and the move was seen as an attempt by the judges to increase the scope of their power.
The denial also came a month after U.S. Secretary of State Mike Pompeo announced that the Trump administration planned to revoke or deny visas to anyone from the ICC involved in the Afghanistan investigation.
“This is an unwarranted invasion of the prosecutor’s competence to best determine how to allocate the resources in her office,” Nada Kiswanson van Hooydonk, one of several lawyers for victims, said Thursday.
The prosecutor and victims appealed the court’s denial in June, but it was unclear under the 2002 Rome Statute, which created the court, whether victims had the right to appeal.
The ICC’s five-judge appeals chamber agreed in September to hear arguments on that point, as well as broader arguments about whether the pretrial chamber overstepped its bounds by rejecting the investigation in the first place.
Most of the presentations Thursday focused on whether the pretrial chamber had erred in its denial, either because the judges overstepped their authority or because they had considered sufficient evidence.
Several other parties filed amicus briefs against the appeal for reasons of national sovereignty. The U.S., for example, is not a signatory of the Rome Statute.
One of President Donald Trump’s personal lawyers, Jay Sekulow, spoke during the hearing on behalf of the European Center for Law and Justice, a conservative legal organization.
“The United States is not going to cooperate based on customary international law and specific bilateral agreements,” Sekulow said.
Though Sekulow was not officially speaking on behalf of the U.S. government, his opinion is shared by the Trump administration.
In a September 2018 speech, Trump’s former national security adviser John Bolton pledged not to support the ICC.
“We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us,” Bolton said.
Afghanistan is also opposed to the ICC investigation. The country’s ambassador to the Netherlands, Homayoon Azizi, told the court on Thursday, “We can undertake these investigations in our own country.”
The ICC is intended to be a court of last resort, only prosecuting crimes when nations are unwilling or unable to do so.
Seventeen human rights groups from Afghanistan, who have also filed an amicus brief in the case, disagreed with the ambassador and argued that the country’s government is unable to be impartial in cases involving its own security forces.
The argument that U.S. citizens are beyond the reach of the ICC was also called into question, as the alleged crimes they committed happened in Afghanistan, which is a member of the court.
“If the United States doesn’t want to come before the ICC, it should prevent its citizens from committing offenses,” said Katherine Gallagher of the Center for Constitutional Rights, a progressive legal advocacy organization, who is representing a group of victims.
Hearings will conclude on Friday.