Syed Qamar Afzal Rizvi
THE International Criminal Court’s prosecutor has requested a full investigation into the war crimes in Afghanistan. US and Afghan military personnel could be indicted, along with Taliban members, for committing crimes against humanity. Fatou Bensouda, a Gambian jurist who has been the ICC’s chief prosecutor since 2012, confirmed earlier suspicions that the United States would be implicated in the probe. The decision marks the first time the ICC under Bensouda will investigate American forces and operatives. The Trump administration’s mindset shows that Washington is not comfortable with this development. In a statement, Bensouda clarified that alleged “war crimes by members of US armed forces” and “secret detention facilities in Afghanistan” used by the CIA justified the court’s investigation. Earlier this month, she had announced that “there is a reasonable basis to believe that war crimes and crimes against humanity have been committed” in Afghanistan but had declined to specify by whom.
“After a comprehensive and careful scrutiny of the information available to the office,” Bensouda said in a statement announcing her decision, “I have determined that there is a reasonable basis to proceed with an investigation of the situation in Afghanistan.” She named the Taliban and Haqqani Network, the Afghan National Security Forces, in particular, members of the National Directorate for Security and the Afghan National Police, and members of the US armed forces and CIA. Kip Hale, a US attorney specializing in atrocities investigations and prosecution who formerly headed a project fostering cooperation between the American Bar Association and the ICC, says that Washington can no longer ignore the court in The Hague. In part, he told DW, this is due to Bensouda’s success in beefing up her office’s credibility and professionalism, which is key to her confidence in opening what is bound to be a bitterly controversial trans-Atlantic dispute with this investigation.
The US United States is not a member state of the court, but its citizens can be charged with crimes committed in countries that are members. The US State Department said it was reviewing Bensouda’s authorisation request but opposes the ICC’s involvement in Afghanistan.” Our view is clear: an ICC investigation with respect to US personnel would be wholly unwarranted and unjustified,” the State Department’s statement said. A Pentagon spokesman, Air Force Lt. Col. Mike Andrews, said the Defence Department does not accept that an ICC investigation of US personnel is warranted. “The United States is deeply committed to complying with the law of war, and we have a robust national system of investigation and accountability that more than meets international standards,” Andrews said. “We do not believe that an ICC examination or investigation with respect to the actions of US personnel in Afghanistan is warranted or appropriate.”
“For decades, the people of Afghanistan have endured the scourge of armed conflict,” ICC prosecutor Fatou Bensouda said. “Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met.” “In order to charge Americans with war crimes, Bensouda would likely also have to demonstrate a link between the conflict in Afghanistan and US detention policies, which may not be easy,” writes David Bosco in foreignpolicy.com. “Perhaps most controversial, the prosecutor’s office would have to determine that the United States has failed to address allegations of torture through its own domestic prosecutions, investigations, and reviews.”
But a report released by the prosecutor’s office last year says there is a “reasonable basis” to believe the following crimes have occurred: “Crimes against humanity and war crimes by the Taliban and their affiliated networks; “War crimes of torture and related ill-treatment by Afghan government forces, in particular the intelligence agency -NDS, and the Afghan National Police; War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.” A probe into Afghanistan would be a first for the court, which was established when the Rome Statute took effect in 2002.
Historically, “The United States government has consistently opposed an international court that could hold US military and political leaders to a uniform global standard of justice,” according to Global Policy Forum Organisation. “The Clinton administration participated actively in negotiations towards the International Criminal Court treaty, seeking Security Council screening of cases. But the attitude of Junior Bush administration and the Obama administrations remained non cooperative towards the ICC and the current course of action adopted by the Trump administration shows that Washington pays no heed and attention to the Rome Statute. Pentagon spokesman Eric Pahon said the US supports accountability for crimes committed by the Taliban and “other serious crimes in Afghanistan.” Human Rights Watch official Param Preet Singh said, ‘’The ICC is a court of last resort — it’s only going to step in when national authorities fail to do so’’.
The US initially signed the Rome Statute under the Clinton administration but never ratified it, citing concerns that it would be used to prosecute US citizens unfairly. However, the ICC would still be able to investigate, the BBC adds, because “Afghanistan is a member, and the court’s jurisdiction covers crimes committed on any member state’s territory regardless of the nationality of the perpetrator.” Yet the indicators reflected from horizontal and vertical legal polarisation executed by both US and Israel to abate the international legal system endorse the impression that the US officials could hardly be punished against the crimes they committed in Afghanistan.
— The writer, an independent ‘IR’ researcher-cum-analyst based in Karachi, is a member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies.