The ICC’s Probe Into Atrocities in Afghanistan: What to Know

The ICC appeals chamber’s decision to move ahead on an investigation of grave abuses by combatants in Afghanistan, including U.S. forces, marks an unprecedented move that is likely to arouse intensive pushback from Washington.

Article by David J. Scheffer

The Appeals Chamber of the International Criminal Court (ICC) in The Hague has ruled that the court’s prosecutor, Fatou Bensouda, can finally proceed—following a preliminary examination of more than a decade—with a formal investigation into atrocities allegedly committed during the armed conflict in Afghanistan. Bensouda contends that some of those crimes were committed by U.S. armed forces and CIA personnel. The decision has sparked a strong rebuke from U.S. officials, who denounce what they call a “renegade” court.

What did the Appeals Chamber decide?

The unanimous judgment reversed an earlier decision by the Pretrial Chamber to dismiss the prosecutor’s motion to launch an investigation into the Afghanistan situation. It was the first time the Appeals Chamber had been seized with reviewing a Pretrial Chamber decision [PDF] of this nature. The five appeals judges—from Canada, Peru, Poland, Uganda, and the United Kingdom—rejected the lower chamber’s view that an investigation of the Afghanistan situation would not serve “the interests of justice.” The Appeals Chamber concluded that the governing treaty of the ICC, the Rome Statute [PDF], does not authorize the Pretrial Chamber to use its discretion to determine “the interests of justice” when the prosecutor seeks approval for an investigation. The judges ruled that there is a reasonable factual basis to proceed and that potential cases do fall within the ICC’s jurisdiction.

Additionally, the Appeals Chamber broadened the prosecutor’s scope of investigation to include criminal acts she might discover while further investigating the Afghanistan situation.

Read the full report on Council on Foreign Relations.