In a blockbuster decision, the International Criminal Court’s Pre-Trial Chamber II on Friday unanimously rejected the request of the ICC Prosecutor to criminally probe the US for war crimes torture allegations relating to its conduct in Afghanistan with detainees in the years following the September 11, 2001 terrorist attacks.
While not directly related, the decision could potentially help Israel avoid an ICC criminal probe in the future.
The judges decided that “an investigation into the situation in Afghanistan at this stage would not serve the interests of justice.”
Ruling on the case were Judge Antoine Kesia-Mbe Mindua, who will be writing a separate opinion, as well as Judge Tomoko Akane and Judge Rosario Salvatore Aitala.
On November 20, 2017, the ICC prosecutor filed a request with the ICC Pre-Trial judges to initiate a full criminal investigation into torture allegations. The ICC prosecutor asserted that the torture allegations could constitute war crimes and crimes against humanity for US conduct in Afghanistan since May 2003, and for related US conduct in other countries.
In its Friday decision, the ICC said that it had “thoroughly checked the information submitted by the prosecutor and considered that the request establishes a reasonable basis to consider that crimes within the ICC jurisdiction have been committed in Afghanistan and that potential cases would be admissible before the court.“
However, the ICC rejected prosecuting the American soldiers due to the time elapsed since the a preliminary probe was opened in 2006, “the political changing scene in Afghanistan... the lack of cooperation that the prosecutor has received and which is likely to go scarcer should an investigation be authorized hampering the chances of successful investigation... and the need for the court to use its resources prioritizing activities that would have better chances to succeed.”
Recently, the US revoked the visa of ICC Chief Prosecutor Fatou Bensouda and threatened additional retaliatory actions against the ICC if the judges had approved prosecuting the US.
Depending on whether Bensouda decides to appeal the ruling to the ICC Appeals Chamber or to accept the decision, the crisis between the US and the ICC may now blow over.
Israel has faced a preliminary probe for war crimes relating to the 2014 Gaza War since January 2015, and the ICC Prosecutor is expected to make a decision in the coming year or less about whether to go after Israel with a full criminal probe.
The ICC’s decision to block a full criminal probe of the US could help Israel argue for the same result.
The US has rejected the ICC’s attention as improper, saying that it has performed its own probes of the torture allegations.
Israel has and will make the same argument: that it has probed any war crimes allegations against its soldiers.
In a statement Friday, President Donald Trump said that “Since the creation of the ICC, the United States has consistently declined to join the court because of its broad, unaccountable prosecutorial powers; the threat it poses to American national sovereignty; and other deficiencies that render it illegitimate,” the White House said in a statement it attributed to Trump. “Any attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response.”
It’s the second time that the Trump administration has extended its vow to protect allies from the court explicitly to Israelis, according to the JTA. Last month, Secretary of State Mike Pompeo said ICC officials who prosecute Americans or Israelis would be denied entry into the United States.