The International Criminal Court recently delivered a shock ruling.
The ICC’s pre-trial judges decided unanimously against opening an investigation into war crimes in Afghanistan.
Opening an investigation would not serve the “interests of justice,” according to the judges.
Yet is hard to see how the judges have themselves served the interests of justice. They have denied any redress to victims of atrocities.
The decision was made despite the clear findings of an assessment by Fatou Bensouda, the ICC’s chief prosecutor. She concluded there was a “reasonable basis to believe” that war crimes had been committed by the US military, the CIA, the Taliban and Afghan state forces.
In a statement, the pre-trial judges argued that an investigation must be carried out “within a reasonable timeframe.” The evidence they had considered related to violence perpetrated from May 2003 onwards. And the ICC’s overall mandate is limited to crimes committed since July 2002.
The judges’ position is something of an anomaly. Under international law, no statute of limitations should apply to war crimes or crimes against humanity.
Justice takes time
Furthermore, the pursuit of international justice takes time.
That was demonstrated in the case of the former Yugoslavia.
It took until March 2016 – 21 years after the initial indictment – until he was found guilty.
Another reason cited by the ICC’s pre-trial judges for their decision was that it was difficult to gauge “the prospects of securing meaningful cooperation from the relevant authorities.”
Without doubt, that was a reference to the US.
The world’s only military superpower has refused to join and has been openly hostile towards the court. Among the evidence brought before the court’s judges was that torture and rape had occurred in detention facilities run by the CIA in Afghanistan.
Donald Trump, the US president, claimed the judges’ decision as a “major international victory.” Rather than concentrating on the Afghan situation, Trump implicitly told the ICC to end its deliberations on whether Israel should be prosecuted for attacks on Palestinians.
“Any attempt to target American, Israeli or allied personnel for prosecution will be met with a swift and vigorous response,” Trump warned.
Benjamin Netanyahu, the Israeli prime minister, had a similar response. He welcomed the decision by the ICC’s judges as “an act that has far-reaching influence with regard to the conduct of the international system in relation to the State of Israel.”
The decision follows a number of coercive measures introduced by the Trump administration to shield both US and Israeli nationals from prosecution before the ICC.
Last year, the US closed the Palestine Liberation Organization’s office in Washington. The closure was, in the State Department’s words, “consistent with” concerns about Palestinian calls for Israel to be prosecuted by the ICC.
In March, Mike Pompeo, the US secretary of state, announced that a visa ban would be imposed on ICC prosecutors. Visa restrictions “may also be used to deter ICC efforts to pursue allied personnel, including Israelis, without allies’ consent,” Pompeo said.
The following month, the US confirmed it had revoked the entry visa of Fatou Bensouda, the ICC’s chief prosecutor.
For more than seven decades, Israel has been pursuing a project of ethnic cleansing against the Palestinians. As well as providing billions of dollars in annual military aid to Israel, the US has used its veto at the UN Security Council to protect Israel from being held accountable.
Knowing that there is no price to pay for its crimes, Israel has developed an apartheid system that has become increasingly extreme.
Over the past 12 months, it has placed legislation on its statute books, explicitly stating that the right of self-determination in Israel is “unique to the Jewish people.” By definition, Palestinian citizens of Israel are accorded a lesser status.
Palestinians living under Israeli occupation in the West Bank and Gaza are being contained behind checkpoints, watchtowers and walls. All of historic Palestine is affected by Israel’s policies.
Israel’s colonialist project encompasses a range of crimes: willful killing, the destruction and theft of property, pillage, persecution and apartheid. All of these are crimes that fall within the ICC’s purview.
By ensuring a thorough investigation, the ICC could begin to deliver accountability for Israel’s crimes and justice for the Palestinians.
Human rights workers, lawyers and victims of war crimes put their lives at risk by gathering evidence for submission to the ICC. They do so in the genuine quest for justice and a belief in the rule of law.
If it is to survive, the ICC must take on hard cases. It must stand up to the superpower.
Susan Power is head of legal research and advocacy at Al-Haq, a Palestinian human rights organization based in Ramallah, occupied West Bank.
David Cronin contributed research.