Bensouda’s Decision to Investigate Afghanistan: milestone or diversion

There has been lots of excitement and speculation since Madame Fatou Bensouda announced that after a “meticulous preliminary examination” she has decided to formally request the International Criminal Court (ICC) Pre-Trial Chamber (PTC) to grant her authorization to open an investigation concerning war crimes and crimes against humanity, which she believes have been committed “since 1 May 2003 on the territory of Afghanistan.” Her investigation would also cover “war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.”

Anyone following the news since the United States (US) went after the Taliban in Afghanistan, would be hard pressed not to have noticed the plethora of mass atrocities that have taken place in, around, and in relation to what has been characterized as the war on terror in Afghanistan and elsewhere. One would have also noticed the same sort of war crimes and crimes against humanity play out in Syria and Iraq. Whether a “meticulous” preliminary investigation that spanned over a decade was necessary to come to this rather obvious conclusion (at least for the sake of seeking authorization to investigate) is questionable. Unless, of course, the real target all along were US armed forces and operatives of the US Central Intelligence Agency (CIA). And when you strip the bark off Madame Bensouda’s request to the PTC, that is what this seems to be all about.

There is little doubt that Madame Bensouda was on solid ground in conducting such a “meticulous” preliminary investigation in making this request to open an investigation. Whether the US plays ball is another matter. I would be surprised if the US, especially under President Donald Trump, will dignify any attempts by the Office of the Prosecutor (OTP) to have members of the US armed forces, CIA operatives, or any other operatives of any US agencies involved (clandestine or otherwise) cooperate. Expect the US to press hard its allies and friends that have signed a Status of Forces Agreement or other bilateral or multilateral security agreement, to ensure that no US serviceman or servicewoman, or anyone connected with the US armed forces would come under any State Party’s national jurisdiction. While the CIA may not fit squarely within the scope of the relevant agreements (for example, see here, pp. 20-23), there is likely to be sufficient wiggle room to include them under the umbrella of protection.

Whether and to what extent the PTC will grant Madame Bensouda’s request for judicial authorization to commence an investigation is not much of an issue; a virtual certainty, especially considering the low evidentiary threshold to proceed with an investigation. And dare I raise the specter of bending to political pressure, the need for the ICC to impress upon the African states that it is not singling out Africans. Whether the investigation goes anywhere is an entirely different matter, and perhaps of no importance – a gambit Madame Bensouda considers worth taking regardless of the outcome.

Not having all the information, it is hard to predict whether, for instance, the gravity test will be met in relation to allegations against members of the US armed forces or CIA operatives. Gravity may not always be that important, as for example, in the Al Mahdi case. But why should it have been, and who cares? Al Mahdi served his guilty plea on a silver platter. He even agreed to a rather high sentence of nine years (when compared to other sentences). Al Mahdi was a quick and easy score, one desperately needed for the anemic ICC statistics.

But concerning the situation in Afghanistan – as with other situations – meeting the gravity of the offenses criteria (a bit of I know it when I see it; or, it depends on whose ox is being gored) is going to be pesky. According to the OTP’s 2016 Preliminary Examination Report, the issue is whether the allegations of torture, cruel treatment, outrages upon personal dignity, and/or rapes of a fairly limited number of persons (when compared to other ICC situations) is sufficiently grave to warrant an ICC investigation.

The OTP found that there is a reasonable basis to believe that members of US armed forces subjected at least 61 detainees to torture, cruel treatment, and outrages upon personal dignity during interrogations in Afghanistan (para. 211). The OTP attempts to link these acts with the CIA’s unlawful interrogation and/or rapes of at least 27 other persons in Afghanistan and at black sites on the territory of other ICC States Parties (namely Poland, Romania, and Lithuania) (para. 211). According to the OTP, “[t]hese alleged crimes were not abuses of a few isolated incidents. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees” (para. 212). The OTP considered, but rejected, that there is a reasonable basis to believe that civilian deaths resulting from targeting decisions by international forces (to which the US contributes the majority of forces) amount to war crimes (para. 202), so it does not appear that Madame Bensouda will now investigate other alleged US war crimes.

And then there is politics. Going after a non-member state who just happens to be a permanent member of the UN Security Council will take more than courage. It is unlikely to sit well with any of the other permanent members (Russia and China) who have shown no appetite for relinquishing any of their jurisdiction to the ICC.

Assuredly, any arguments that the US has failed to investigate, charge, try, convict, and punish those most responsible for the alleged crimes against humanity and war crimes in Afghanistan or anyone connected to any associated crimes outside Afghanistan, will be ignored by the US – irrespective of who is the President. Other than causing visceral satisfaction to those who feel that the US has been getting away with such crimes in places like Afghanistan, Iraq, and elsewhere, this decision by Madame Bensouda is unlikely to yield any tangible results. If anything, it may turn out to be a very expensive distraction with immediate and long-term ramifications.

At age 14, the ICC has little to show. In comparison with the ad hoc tribunals, the ICC has moved at a snail’s pace. By all measures, it is punching well below its weight. Perceived by many States Parties as a botched work-in-progress, it risks becoming irrelevant. This is why in the past I have suggested that it would be wiser for the OTP to go after low-hanging fruit, and refrain from getting snarled up with cases or situations that are politically driven. Maybe the situation in Afghanistan is not about politics, but it seems that way. Not that the alleged crimes are not worth investigating (since all alleged crimes should be investigated regardless of where they occur and who commits them). But are these the sort of alleged crimes that the ICC should be focusing on at this point in time, considering its budgetary constraints, the elusiveness of achieving anything concrete,  the high probability that the US and Afghanistan will not cooperate in the investigation, and the fact that other much more pressing matters deserve immediate attention?

The ICC Prosecutor is expected to be a judicious realist, not a quixotic zealot. With the job comes a fair amount of politics, and anyone occupying that position must have political instincts, savvy, and gravitas. The first ICC Prosecutor, Luis Moreno Ocampo, lacked these attributes. His political instincts went as far as how he could market his image, his ego, and as we now know, himself. Madame Bensouda, as the second ICC Prosecutor, has proved slightly more adept.

Maybe it is too much of a stretch, but it seems that this request comes at a time when Madame Bensouda’s reputation and her integrity have been called into question. She recently confessed that she had been untruthful when, in relation to Ocampogate, she said she had no contact with Moreno Ocampo. Then last week, she came further clean when she admitted to ghost-writing an article with Moreno Ocampo’s byline that was published and circulated in Kenya. She claims she did this for the good of the ICC and the OTP. Perhaps, but this conduct is sordid and dishonest. And she only came clean when the game was up, unmasked by her own email exchanges with Moreno Ocampo. There is nothing honest or admirable or trustworthy in confabulating and deceiving.

So, not to put a too-fine point on this, could it be that Madame Bensouda and the OTP made this request at this given moment in order to garner some positive press, to distract her detractors from her involvement in Ocampogate? Whether the request to investigate Afghanistan is a milestone or a distraction may prove to be irrelevant.

Perhaps the better question to ask is whether the efforts and resources that are about to be spent during the investigation will be well worth the preordained result – at least as far as getting members of the US armed forces or CIA operatives in the ICC dock. It may not seem fair if the evidence warrants criminal prosecution and the US fails to prosecute in its own courts any alleged perpetrators identified by the OTP, but so it goes.

And there is nothing the ICC can do about it. If there ever was a metaphor for the ICC’s impotency, it is the situation in Darfur, where Sudan and South Africa failed to comply with the ICC arrest warrant for Sudanese President Omar Al-Bashir, and neither the Assembly of States Parties nor the UN Security Council had the moral fortitude to act decisively on the matter (for more on this, see my post here). And gravity has never been an issue.

More no doubt when the PTC issues its decision.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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