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On Tuesday, the media reported on the reopening of an International Criminal Court preliminary investigation into British unlawful killings and inhuman treatment of prisoners in Iraq.

In 2006, the ICC had closed the investigation, finding reasonable basis to believe that crimes had been committed, but that the number of cases was too small for ICC attention. But the investigation has now been reopened, because many more cases have come to light since then.

The court is to conduct a preliminary examination of what have been estimated to be 60 alleged cases of unlawful killing and claims that more than 170 Iraqis were mistreated while in British military custody during the conflict.

British defence officials are confident that the ICC will not move to the next stage and announce a formal investigation, largely because the UK has the capacity to investigate the allegations itself.

However, the announcement is a blow to the prestige of the armed forces as the UK is the only western state that has faced a preliminary investigation at the ICC. The court's decision places the UK in the company of countries such as the Central African Republic, Colombia and Afghanistan.

In a statement released on Tuesday, the ICC said: "The new information received by the office alleges the responsibility of officials of the United Kingdom for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008.

ICC to examine claims that British troops carried out war crimes in Iraq, Guardian

Today, David Bosco at Foreign Policy asks, Is the ICC investigating crimes by U.S. forces in Afghanistan? The ICC had written to the U.S. last year, seeking information about a number of specific cases, and also about general U.S. policies. The U.S. then organized a strong effort to suppress any investigation.  

The 2013 letter represented the first concrete indication the court was scrutinizing possible American transgressions on Afghan soil. State Department, Defense Department, and White House officials hurriedly conferred about how to respond. Within weeks, three U.S. officials were on a plane to The Hague. At ICC headquarters, they met with the deputy prosecutor, veteran Canadian prosecutor James Stewart, and several of his senior staff. Individuals familiar with the meeting recall that the U.S. delegation urged the court not to publish the allegations, even in preliminary form. They warned that the world would see any ICC mention of possible American war crimes as evidence of guilt, even if the court never brought a formal case. (ICC officials would not comment on the meeting other than to note that they routinely have confidential meetings with states about potential investigations.)

Is the ICC investigating crimes by U.S. forces in Afghanistan?, Foreign Policy

In May 2002, George Bush renounced U.S. obligations under the Rome Statute, and in August 2002, Congress passed a law limiting U.S. support and assistance to the then one-month-old ICC. The law is nicknamed the "Hague Invasion Act," because it authorizes the President to use “all means necessary and appropriate to bring about the release” of U.S. and allied persons detained or tried by the ICC.

So, the U.S. is not a State Party to the Rome Statute, but Afghanistan is, and ICC jurisdiction includes acts occurring in the territory of Afghanistan.

The ICC has had a preliminary investigation into Afghanistan open for many years, since 2007. The latest update on activities was in November 2013.

Several months after that meeting, the prosecutor's office released a public update on its preliminary investigation in Afghanistan. It focused heavily on crimes by anti-government forces in Afghanistan. All the specific cases that the court had spoken about with U.S. officials were absent, and the report did not even mention the United States by name. But the prosecutor's spare language makes clear that her office remains quite interested in U.S. conduct in Afghanistan and whether it has done enough to ensure accountability for abuses. For their part, U.S. officials have been eager to keep the ongoing dialogue with the court quiet.

Is the ICC investigating crimes by U.S. forces in Afghanistan?, Foreign Policy

Under the doctrine of complementarity, the ICC functions as a court of last resort, and will not intervene where a nation is taking action itself. Generally speaking, the United Kingdom has taken its responsibilities more seriously than the U.S. has. For example, the U.K. High Court has ruled this month, that U.K. Detention Practices in Afghanistan Are Illegal.

No one would have a strong expectation that the ICC will deal effectively with United States action in Afghanistan.

For all the heartburn the ICC probe is causing in Washington, the chances that the court will ever prosecute U.S. soldiers or officials remain slim.

Is the ICC investigating crimes by U.S. forces in Afghanistan?, Foreign Policy

But David Bosco is suggesting that ICC action is at least possible, as gauged by the direction of ICC enquiries.
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