Justice Denied: Reality of the International Criminal Court

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David Hoile
Imagine if there were a criminal court in Britain which only ever tried black people, which ignored crimes committed by whites and Asians and only took an interest in crimes committed by blacks. We would consider that racist, right? And yet there is an International Criminal Court which only ever tries black people, African black people to be precise, and it is treated as perfectly normal. In fact the court is lauded by many radical activists as a good and decent institution, despite the fact that no non-black person has ever been brought before it to answer for his crimes.
It is remarkable that in an era when liberal observers see racism everywhere, in every thoughtless aside or crude joke, they fail to see it in an institution which focuses exclusively on the criminal antics of dark-skinned people from the ‘Dark Continent’…. Liberal sensitivity towards issues of racism completely evaporates when it comes to the ICC, which they will defend tooth and nail, despite the fact that it is quite clearly, by any objective measurement, racist, in the sense that it treats one race of people differently to all others.
Afghan case study
Afghanistan provides a further example of a developing world nation invaded and occupied by Western states. It also provides another clear example of the ICC’s disinclination, for political reasons, to deal with blatant war crimes allegedly committed and unaccounted for by Western military forces, including prominent European States Parties to the Rome Statute, in the territory of another State Party. The occupation of Afghanistan and the military operations that have been conducted and continue to be carried out in that country fall under the control of two international missions. The first is Operation Enduring Freedom, a joint USA, UK and Afghan military operation. The operation began in 2001, following the 9/11 terrorist outrages in the USA. By the winter of 2001, the USA had unseated the Taliban government.
The operation continues against a subsequent insurgency being fought against both the occupation forces and the new Afghan government the USA installed in Kabul, with military direction mostly coming from United States Central Command. The second mission is the International Security Assistance Force (ISAF), a NATO-led mission in Afghanistan that was established by the UNSC in December 2001 by Resolution 1386, as envisaged by the Bonn Agreement. ISAF was set up as a UN-mandated international force to assist the new Afghan interim authority to provide security in and around the capital, Kabul, and to support the reconstruction of Afghanistan. On August 11, 2003, NATO assumed leadership of the ISAF operation, and from January 2006 onwards, ISAF also assumed some combat duties from the ongoing Anglo-American mission, Operation Enduring Freedom.
NATO became responsible for the command, coordination and planning of the force, including the provision of a force commander and headquarters on the ground in Afghanistan. ISAF is made up of military forces from the USA, UK and other NATO member states, and falls under the command of NATO’s Joint Force Command in the Dutch town of Brunssum. The two missions run in parallel. Their personnel are generally known as the coalition forces. Afghanistan is a member of the ICC.
William Schabas, a Canadian academic in the field of international criminal and human rights law, has confirmed that the court is able to initiate prosecutions of war crimes and crimes against humanity committed in Afghanistan.
“[The Prosecutor] may…proceed with respect to war crimes committed by American troops in Afghanistan, which is a State Party to the Rome Statute, because there is jurisdiction over all crimes committed on Afghan territory.”
Philippe Sands, a British and French lawyer and professor of International Law, has confirmed this jurisdiction exists and has outlined the broad extent of the behaviour that could trigger ICC action:
“A CIA officer who conducted an abusive interrogation at Bhagram Air Base could be tried before the court.”
If this applies to non-lethal human rights abuses by a citizen of a non-State Party to the ICC in an ICC State Party, how much stronger is the court’s jurisdiction in the case of murder/attempted murder by a citizen of an ICC member state on the territory of an ICC member state?
Even the Washington Times has stated that “several events have taken place under Obama’s watch that could bring charges for war crimes”, actions that come under the ICC’s remit. There have been numerous incidents amounting to crimes against humanity and war crimes since Afghanistan was invaded in 2001, and since the court acquired jurisdiction in 2002. These grave abuses of human rights have implications for both the Bush and Obama Administrations, and for several ICC States Parties who have acted in coalition with US forces in ISAF/NATO operations.
Professor Mark Herold has pointed to one incident among many that qualifies as a war crime but that has never been taken up by the ICC. On the evening of June 29, 2007, American warplanes killed between 50 and 130 innocent Afghan civilians in a night-time aerial assault upon the village of Hyderabad, about fifteen kilometres northeast of the town of Gereshk. The village was bombed for at least two hours, killing men, women and children. Another major incident occurred on May 4, 2009, in what may be the single deadliest US attack in Afghanistan since the 2001 invasion, when American bombers killed as many as 147 Afghan civilians, 93 of them children, in an airstrike in western Afghanistan that locals call the Farah Massacre.
Culture of impunity
With regard to this incident, US Central Command officials stated that US airstrikes in Afghanistan’s Farah Province had killed only “20 to 30” civilians. A member of Farah’s Provincial Council, Abdul Basir Khan, said he collected the names of the 147 individuals who died in the attack. Relatives of the victims showed mass graves to investigators, along with the remains of bombed-out buildings and homes. The International Red Cross reported that women and children were among the dozens of dead. The UN reported that in 2008, US, NATO and Afghan forces were responsible for over 828 civilian deaths. Most of these deaths were the result of US and NATO airstrikes. In November 2008, for example, US troops bombed a wedding party in the Shah Wali Kot area in southern Afghanistan, killing about forty civilians – mainly women and children. NATO rejected the UN figure of 828 deaths, saying its forces were responsible for only 237 civilian deaths in 2008.
In his study of war crimes in Afghanistan, “Afghanistan War Crimes: Government, ICC and NGOs”, Akbar Nasir Khan has written of the “culture of impunity ingrained in the country’s legal system”. Khan pointed out that there are several indications that the Afghan government has no interest in addressing crimes against humanity and war crimes in Afghanistan: “The Government of Afghanistan has made no concrete efforts to deal with the issue of war crimes…” Khan has pointed to evidence that the government “is not interested in fulfilling its international obligations and participating against impunity”. These include the fact that suggested draft legislation to make domestic laws conform to Article 68 of the Rome Statute has been ignored by the government; Afghanistan’s seat is still vacant in the Assembly of State Parties of the ICC, and nobody has been appointed to the body yet; and that Afghanistan has never invited the ICC to conduct any investigations of past crimes.
In March 2009, the government let an action plan to implement a national “Action Plan for Peace, Reconciliation and Justice”, prepared by the Afghanistan Independent Human Rights Commission in 2005, lapse. In January 2007, both the lower and upper houses of the Afghan Parliament passed a national stability and reconciliation resolution, which granted blanket amnesty to “all the political wings and hostile parties who had been in conflict before the formation of the interim administration”. This was enacted as legislation in early 2010, in the Amnesty, National Reconciliation and Stability Law in the Official Gazette (No. 965). Section 3, Clause 2, of the amnesty law extends immunity from prosecution by the government to “armed people who are against the government of Afghanistan, after the passing of this law, if they cease from their objections, join the national reconciliation process, and respect constitutional law and other regulations of the Islamic Republic of Afghanistan, they will have all the perquisites of this law”.
Khan notes: “Legally, this law contradicts Afghanistan’s “duty to prosecute” norm which has been established under different instruments of international laws, including Genocide Convention, Convention against Torture, and all four Geneva Conventions.”
Khan notes further that “human rights abusers continue to enjoy almost complete impunity”. He observes: “The Afghan Parliament is made up largely of lawmakers who once belonged to armed groups, some of which have been accused of war crimes by human rights groups and the general public.”
Afghanistan Human Rights Organisation researcher Maghferat Samimi states that the warlords and their militia commanders continue to commit crimes with impunity, protected by their alliances with foreign nations and comfortable positions within the Afghan government.
Africa
Impunity, amnesty, warlords, militias and alleged war crimes in Africa are at the top of the ICC’s agenda. In Afghanistan they barely rate a footnote in ICC reports, let alone a full investigation, despite the hundreds of thousands of victims of human rights abuse and forced displacement. It is not as if the Chief Prosecutor does not have documentary evidence with which to work regarding war crimes in Afghanistan. Much of the investigative work has already been done for the ICC. The Report of the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions in 2009, for example, stated that: “There have been chronic and deplorable accountability failures with respect to policies, practices and conduct that resulted in alleged unlawful killings – including possible war crimes – during the United States’ international operations. The Government has failed to effectively investigate and punish lower-ranking soldiers for such deaths, and has not held senior officers responsible under the doctrine of command responsibility. Worse, it has effectively created a zone of impunity for private contractors and civilian intelligence agents by failing to investigate and prosecute them.”
In addition, in July 2010 Wiki Leaks released a set of documents called the “Afghan War Diary”, a compendium of over 91,000 reports covering the war in Afghanistan from 2004 to 2010. Christopher Hall, a legal adviser for Amnesty International, says the Wiki Leaks material, together with data collected previously, contained enough evidence of atrocities for the ICC prosecutor to seek permission to launch a full probe on Afghanistan: “It is not an issue, at this stage, whether the leaked information, whose authenticity has not been denied, is admissible evidence in a trial in the ICC. Coupled with all the other reliable information that the Office of The Prosecutor has been compiling since 2007, concerning all parties to the conflict, the office has more than sufficient information to determine whether to seek authorisation from the ICC pre-trial chamber to open a formal criminal investigation designed to obtain sufficient admissible evidence for the trial of individuals for war crimes and crimes against humanity”.
The Kunduz Massacre
Harold Koh, the US State Department’s legal adviser, says the ICC prosecutor should investigate “more immediate” concerns than acts by US forces in Afghanistan. Koh, predictably, says that the Wiki Leaks data dump is unreliable as evidence. He adds, “Frankly, I don’t think a prosecutor conducts his business as a serious prosecutor by not first doing investigations in which he gathers evidence, as opposed to things on the web, and determine whether there is basis for a case”. (Interestingly, it emerged in July 2011 that while the ICC prosecutor was not interested in using the huge Wiki Leaks material release regarding Afghanistan, the OTP would be relying on one or two leaked American cables released by Wiki Leaks as part of his evidence in Kenyan cases before the court.
A particularly infamous and well-documented incident occurred on September 4, 2009 when a German officer serving with the NATO-led ISAF in Afghanistan, Colonel Georg Klein, called in an airstrike by two US F-15E Strike Eagle fighter bombers on two immobilised fuel tankers, seven kilometres southwest of Kunduz in northern Afghanistan, near the hamlet of Omar Kheil on the border of the Char Dara and Aliabad districts. It was the bloodiest German military action since the end of the Second World War. It was also the largest airstrike that had ever been launched in northern Afghanistan. The German Bundestag lower house of parliament would come to describe the Kunduz massacre as “one of the most serious incidents involving the German army since the Second World War”.
A political advisor to the German Army, Timo Noetzel, stated that “It was, by far, the most aggressive, and in its consequences, most deadly operational decision for which a German soldier had been responsible since the end of the Second World War.” The fuel tankers, each carrying some 50,000 litres of petrol, had been hijacked and were stuck on a small island in the middle of the Kunduz River, then a dry river bed.
Der Spiegel noted that “the trucks were obviously going nowhere, and had been stuck for four hours”. The US warplanes dropped two GBU-38 bombs, each weighing approximately 250 kilograms (500 pounds), and reported “weapons impact”. The GBU-38 is a highly accurate weapon system, thanks to a GPS guidance system. On the ground, the fuel tankers exploded in a gigantic fireball. The attack killed as many as 140 civilians, many of them burned alive. Many of the victims were women and children trying to siphon fuel. Der Spiegel stated: “It was an unnecessary air strike, that much is certain.”
The then Bundeswehr Chief of Staff Wolfgang Schneiderhan, stated: “Now we have lost our innocence.” Afghan President Hamid Karzai was fiercely critical of the attack: “Targeting civilian men and women is not acceptable.” He went on to observe: “What a miscalculation! More than 90 dead for a simple fuel tanker that was stuck in a river bed. Why didn’t they send ground troops to get the tankers back?” Karzai also revealed that in a telephone call to apologise for the tragedy, General McChrystal had distanced himself from the incident, stating that he had not ordered the attack. Der Spiegel reported that Germany “Came under strong international pressure because of the attack. An informal meeting of European Union foreign ministers in Stockholm on the weekend of September 5–6 turned into an indictment of the German deployment.
French Foreign Minister Bernard Kouchner said that the bombing was “a big mistake” and it needed to be thoroughly investigated. His British counterpart David Miliband called for an “urgent investigation” and said it was important to “make sure that it doesn’t happen again”. The German government and ISAF initially said that all those killed in the bombing were Taliban fighters.
Defence Ministry spokesperson Captain Christian Dienst told journalists in Berlin on the day of the attack that “according to our knowledge at present, no civilian was injured” and that the attack was ordered because the military was in possession of data “which allowed the conclusion that no uninvolved civilians would be harmed in the attack”. Dienst claimed that German soldiers were “completely in the know” about “what they are allowed to do and what they are not allowed to do”. Dienst also stated: “Had civilians been present, the air strikes could not have been called in.” These claims were all false.
In the days that followed the attack, the German government continued to claim that no civilians had died and that only insurgents had been killed. The Defence Ministry then went on to lie about the circumstances of the attack, claiming German use of  reconnaissance drones and reconnaissance vehicles during the night to gather information about the situation in the riverbed before the attack. When questions were asked about the questionable circumstances of the attack, the ministry then claimed on September 7 that there was a “further intelligence source that we are not discussing publicly”. The following day, at a special meeting of the Bundestag’s defence committee, this “third source” was revealed to be nonexistent.
The German Defence Minister at the time, Franz Josef Jung, told the Bild am Sonntag newspaper on September 6 that “the air strike was absolutely necessary” and that no civilians were killed. In the interview with Bild am Sonntag – two days after the airstrike – Jung said: “According to all the information I currently have, only Taliban terrorists were killed in the operation carried out by US aircraft.” On 8 September, in comments to the Bundestag, Jung stated that Klein “had clear intelligence indicating that those involved were exclusively enemies of the state”.
These were blatant lies.
On the evening of 4 September, the German Regional Military Command in Masar-i-Sharif sent clear reports back to Berlin that there had been civilian casualties, something confirmed in a subsequent German military police report.^
Writer is a public affairs consultant with the Africa Research Centre

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