Exclusive: International Criminal Court Poised to Open Investigation into War Crimes in Afghanistan - Foreign Policy
The prosecutor’s office of the International Criminal Court (ICC) is ready to initiate a full investigation of a range of possible war crimes and crimes against humanity in Afghanistan, including some by U.S. personnel, according to several knowledgeable sources. The ICC move would mark the first time that a formal ICC investigation has scrutinized U.S. actions and sets up a possible collision with Washington.
Multiple sources have indicated that the chief prosecutor, Fatou Bensouda, will seek to initiate an investigation in the coming weeks, likely after the U.S. presidential election but before the end of the year. U.S. officials visited The Hague recently to discuss the potential investigation and to express concerns about its scope.
The prosecutor’s office has repeatedly called attention to alleged abuses of detainees by U.S. personnel between 2003 and 2005 that it believes have not been adequately addressed by the United States. In a report last year, it noted that “crimes were allegedly committed with particular cruelty and in a manner that debased the basic human dignity of the victims.” Bensouda may also want to probe further the attack by U.S. forces on a Médecins Sans Frontières facility in Kunduz that killed several dozen people.
Even once an investigation begins, it is not clear that the prosecutor would ever bring charges against Americans. Doing so would require significantly more evidence than the prosecutor’s office currently possesses. The ICC normally does not interview witnesses, take testimony, or gather forensic evidence during its preliminary examinations, and that work would be just the beginning.
The U.S. relationship with the court — which was hostile in the first George W. Bush administration — has become increasingly friendly in recent years. Although U.S. legislation still prohibits direct financial assistance to the court, U.S. officials have facilitated the transfer of several indictees to the court and have sought to assist the ICC in other ways. A full investigation in Afghanistan would pose new complications for the next administration as it develops a policy toward the court. Early in her tenure as secretary of state, Hillary Clinton expressed “great regret” that the United States was not able to join the court, but she has given no sign that she would support becoming a member.
At various points, the United States has insisted that the ICC lacks jurisdiction over U.S. personnel because Washington chose not to join the court. In 2002, a senior State Department official warned that ICC assertion of “jurisdiction over citizens of states that have not ratified the treaty … threatens U.S. sovereignty.” That view receives little support in the international legal community. “If an American can be prosecuted by a state for committing a crime on its territory, that state can delegate its territorial jurisdiction to an international tribunal,” Kevin Jon Heller, a law professor at SOAS, University of London, wrote in an email. “The US has never questioned such delegation — at least when applied to nationals of other states.”
These investigations could also present their own political problems. The Afghan government has viewed immunity as an important point of leverage in its efforts to broker cease-fires with opposition forces. In 2007, the Afghan parliament enacted legislation offering amnesty to fighters who laid down their arms. And this September, the government inked an agreement with Islamist leader Gulbuddin Hekmatyar promising immunity for past political and military acts in exchange for an end to his activities against the government.
Moreover, past ICC reports on its preliminary examinations suggest that alleged abuses by the Afghan government itself will also receive scrutiny. In last year’s report, the prosecutor’s office described a range of alleged crimes by Afghan forces, including torture and mistreatment of thousands of detainees. Given these complications, Afghan officials may not welcome an investigation and may choose to provide only limited support to visiting ICC personnel. - More