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Home International Criminal Law Archive for category "War Crimes"

War crimes in Afghanistan and Beyond: Will the ICC Weigh in on the “Global Battlefield” Debate?

Published on November 9, 2017        Author: 

The ICC Prosecutor recently announced her decision to request an authorization to open a formal investigation into possible international crimes committed in connection with the conflict in Afghanistan. The outcome of her preliminary examination was long-awaited and expected to be significant because an investigation into the Afghanistan situation would cover all parties involved – that is, not only local actors but also the international coalition, including the US (US nationals would come under the jurisdiction of the Court if they committed crimes in Afghanistan or in any other State party to the Rome Statute).

The Prosecutor’s choice to subject some aspects of the Afghan conflict to judicial scrutiny despite the pressures deserves to be praised as an “act of bravery.” If the Pre-Trial Chamber authorizes this investigation, the road to justice will be long – many have already commented on possible issues of jurisdiction (e.g. here and here), admissibility (e.g. here and here), evidence-gathering and cooperation (e.g. here), etc. In this post, I want to focus on a potential effect of this announcement: the situation in Afghanistan may give the ICC an opportunity to weigh in on the debate over the global applicability of IHL. Fatou Bensouda intends to prosecute acts of torture committed in CIA detention facilities located in Europe, in connection with the armed conflict in Afghanistan, as war crimes. If she does, ICC judges will have to rule on whether IHL applied to those acts and hence more generally on whether IHL applies beyond the territory of a State where a non-international armed conflict (NIAC) is primarily taking place. The geographical scope of IHL remains one of the most vexing debates in international law (as was clear from a heated discussion on this blog and others, just a month ago) but the Afghanistan investigation may help highlight an overlooked aspect of it. Here is why. Read the rest of this entry…

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Facts, Alternative Facts, and International Law

Published on May 29, 2017        Author: 

On October 3, 2015, at 2:08a.m., a U.S. Special Operations AC-130 gunship attacked a Doctors Without Borders [Médecins Sans Frontières, MSF] hospital in Kunduz, Afghanistan, with heavy fire. Forty-two people were killed, mostly patients and hospital staff members. Dozens of others were injured, and the hospital building was severely damaged and subsequently closed. When the dust finally settled, the question that pre-occupied the press and most pundits was whether this was a war crime.

Attempts to answer this question prompted discussions about the relevant laws and their proper interpretation, which, in turn, fueled disputes about specific facts relevant to these laws. Recent news stories about the Trump administration’s plan to relax some of the battlefield rules further intensified the legal controversies. Unfortunately this focus on questions of law, guilt, and blame divert attention from the more basic questions of what actually happened, why it happened, and what might be done to prevent similar incidents in the future.

The attack on the Kunduz hospital and the controversy that followed it exemplify a broader phenomenon. Legal fact-finding reports set to resolve factual disputes often trigger more controversies, and are poorly equipped to mobilize domestic sanctioning and condemnation of war criminals by their societies. People are motivated to believe what they already know, and to reject facts that are inconsistent with their prior beliefs and political ideology. Legal fact-finding reports are susceptible to social biases just as any other source of information. Therefore, they often fail to create a shared understanding of ‘what happened’ or to combat denialism of crimes. They also lack the emotional appeal, participatory value, and social cues that moral expressions or other types of social truth-telling entail. Read the rest of this entry…

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Filed under: EJIL Analysis, War Crimes
 
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