A letter to The Hague - American crimes in Afghanistan equal the troubles in Darfur

Thabo Masalila | Thursday April 18, 2019 12:54

Chile Eboe-Osuji

Judge President

International Criminal Court

The Hague, Netherlands

 

Dear Judge President,

 

This communique serves as a respectful statement of displeasure at the International Criminal Court’s (ICC) decision of April 12, 2019 rejecting a probe into allegations of war crimes by primarily the US, Afghan officials and the Taliban. The ICC judges’ decision has serious implications for the court and its work; and emboldens bully nations, despots and first world leaders into believing that they can act against humanity with impunity.

Related and acknowledged as beyond your jurisdiction is utter disgust expressed at the retribution by the United States of America to revoke the travel visa for ICC chief prosecutor Ms Fatou Bensouda. This is an aggressive response to Bensouda’s investigation into possible war crimes by American forces in Afghanistan must be condemned. The threat of economic sanctions by Secretary of State Mike Pompeo further cements a belief held by Africans that bully nations will never see the doors of your courts.

The charges by Bensouda read no different from the litany of charges thrown at Yugoslav and former Serbian leader Slobodan Milosevic. The decision by the judges will go down in history as yet another marker for erstwhile belief that the ICC was conceived to deal with third world despots.

The Rome Statute mandates the ICC Chief Prosecutor to secure authorisation from the Court’s judges in order to commence investigations. This is in the absence of referral from United Nations Security Council or Rome Statute-compliant country. ICC judges must then decide whether there is a reasonable justification to proceed with an investigation. Factors for consideration are a reasonable basis to believe war crimes, crimes against humanity and genocide have been committed; whether the case would be admissible; and finally if it would serve the interest of justice.

Delivering a devastating blow for Afghan victims, ICC judges said an investigation “would not serve the interests of justice because prosecution was unlikely to be successful as the US officials, Afghan authorities and the Taliban, are not expected to cooperate”. Bensouda’s initial investigation report indicates members of the military and the CIA “committed acts of torture, rape and sexual violence against conflicted related detainees in Afghanistan in the 2003 – 2004 period”. The Taliban and other insurgent groups are said to have killed more than 17, 000 civilians since 2009. Afghan security agents are accused of torturing prisoners in government detention centres.

The ICC judges’ disappointing decision serves to bolster other perpetrators of the first world knowing facing justice under such circumstances is reserved for African like Omar al Bashir. Perhaps the decision by the ICC judges offers an opportunity to revisit the al Bashir case and equally dismiss it on the same demerits.

On Thursday  April 11, 2019, a military coup d’etat deposed al Bashir, ending three decades of a brutal regime. The ICC’s interest in al Bashir dates back to 2005 when a UN report accused the Sudanese government of gross systematic abuses, war crimes and genocide in the Darfur region. In 2007, the ICC named Ahmad Harun, Sudan’s Deputy Minister of Humanitarian Affairs and pro-government Arabic militia and Janjaweed leader Ali Abd al Rahman as suspects in murder, rape and displacement of thousands of civilians in the Darfur region. The Sudanese government refused to hand over the accused to the ICC.

The Janjaweed is accused of slaughtering more than 200, 000 people and displacing some 2.5 million refugees since the Darfur conflict began in 2003. The mass killings of black villagers and rebel groups saw al Bashir become the first sitting head of State to be indicted by the ICC in 2009. Another warrant was issued in 2010. Warrants for al Bashir’s arrest were issued on the basis of his individual criminal responsibility for the alleged crimes during the Darfur conflict.

Before being toppled by his trusted lieutenants, al Bashir travelled freely around the world despite the international warrant for his arrest. The Sudanese strongman made regular trips to non-full members of the ICC such as Saudi Arabia, Ethiopia and Qatar, but it was his visits to Rome Statute-compliant States, notably South Africa, Uganda and Jordan, that raised questions. Jordan was referred to the UN Security Council following its failure to arrest al Bashir during a March 2017 trip. Jordan’s response hinged on immunity from arrest as a sitting head of State. Jordan said it subscribed to the need to punish those responsible for crimes within the court’s jurisdiction, but not at the “expense of fundamental rules and principles of international law aimed at securing peaceful relations amongst States”.

The Jordan experience was a lesson gleaned from South Africa, where in June 2015 a court issued an interim order stopping the Sudanese leader, Omar al-Bashir leaving the country. The ICC called on South Africa to arrest Omar al-Bashir who was in Johannesburg attending an African Union (AU) summit. But he left nonetheless. In 2017, the ICC found South Africa had failed in its duty to arrest al-Bashir. Botswana made no secret its intention to arrest al Bashir. That is why he played far away.

In 2014, Bensouda HYPERLINK “https://www.theguardian.com/world/2014/dec/14/omar-al-bashir-celebrates-icc-decision-to-halt-darfur-investigation” shelved al Bashir’s case due to a lack of cooperation in arresting al-Bashir.  HYPERLINK “https://www.theguardian.com/global-development/2018/oct/21/omar-bashir-travels-world-despite-war-crime-arrest-warrant” Many saw the shelving as emblematic of the court’s lack of power over powerful individuals, especially sitting heads of State. With al Bashir now deposed questions arise on whether the former Sudanese oppressor should face trial. Whilst this may seem an immoral question, it is not that linear.

Society cannot be sympathetic to a dictator who unleashes terror on civilians. Unable to investigate allegations any further, the prosecution against Kenyan President Uhuru Kenyatta was dropped in 2014. It is alleged that witnesses were terrified to testify and the Kenyan government refused to cooperate. The decision by the ICC judges to reject an investigation into primarily the US affairs gives credit to the thinking that the ICC is essentially powerless against the most powerful.

Prosecuting al Bashir will also go a step further to support a strongly held belief that powerful leaders such as al Bashir can only be prosecuted once out of power. One of Africa’s long held beliefs by tyrants is for death to strike peacefully in sleep while clinging to power. Hauling al Bashir before the court will only reinforce that ill-held belief and may see an upsurge in dictators fortifying their stranglehold in autocratic States. Such an incentive could be exactly what Syrian leader Bashar al Assad is looking for and a deterrent for any possibility of stepping down.

In closing, Judge President Eboe-Osuji, the message is simple. The dismissal of a possible case of war crimes against America and its allies in Afghanistan is a strikingly dangerous message. The first hurdle to jump is undoubtedly the power that individual States retain over the ICC. The court needs an accompanying policing mechanism to arrest those it wants tried for allegations of crimes without having to depend on errant member States. America should take the lead. Only then, will there be legitimacy in the interest of justice.

Every despot must have its day in court, including Omar al Bashir.