Hague court approves war crimes probe into Afghanistan conflict

Appeal judges at the International Criminal Court gave the go-ahead yesterday for prosecutors to open an investigation targeting the Taliban, Afghan forces and US military and CIA staff for war crimes and crimes against humanity.

The decision marked the first time the court’s prosecutor has been authorised to investigate US forces. Washington has long rejected the court’s jurisdiction and refuses to cooperate with it.

In 2018, then US national security adviser John Bolton said the court established in 2002 to prosecute atrocities around the world “unacceptably threatens American sovereignty and US national security interests”.

The global court set itself on a collision course with Washington with yesterday’s decision to uphold an appeal by prosecutors against a pretrial chamber’s rejection in April last year of prosecutor Fatou

Bensouda’s request to open a probe in Afghanistan.

Pretrial judges last year acknowledged that widespread crimes had been committed in Afghanistan but rejected the investigation, saying it would not be in the interests of justice because the expected lack of cooperation meant convictions would be unlikely.

That decision drew criticism from human rights organisations, who said it neglected the desire of victims to see justice in Afghanistan and effectively rewarded states that refused to co-operate with the Hague court.

Even though an investigation has been authorised, it remains to be seen if any suspects eventually charged by prosecutors will appear in court in The Hague. Both Afghanistan and the US have strongly opposed the investigation and the US government refuses to cooperate with the global court.

Rights groups, however, applauded the decision.

Param-preet Singh, associate international justice director of Human Rights Watch, said: “The ICC appeals chamber’s decision to greenlight an investigation of brutal crimes in Afghanistan despite extreme pressure on the court’s independence reaffirms the court’s essential role for victims when all other doors to justice are closed.”

She said the decision “also sends a much-needed signal to current and would-be perpetrators of atrocities that justice may one day catch up to them”.

At a hearing in December, prosecutors argued that pretrial judges at the court had overstepped their powers last April when they refused to authoris an investigation. The appeals judges agreed.

At a December hearing, the government of Afghanistan said it objected to the investigation and has set up a unit to investigate war crimes.