The International Criminal Court has had a preliminary investigation into the situation in Afghanistan open since 2007. It is the longest-running preliminary investigation without any resolution.
In its latest yearly report on preliminary investigations, the ICC prosecutor finds reasonable basis to believe that Taliban, Afghan Government, and U.S. forces have committed war crimes in Afghanistan.
As a result of its examination, the Office has determined that there is a reasonable basis to believe that, at a minimum, the following crimes within the Court’s jurisdiction have occurred:
a. Crimes against humanity and war crimes by the Taliban and their affiliated Haqqani Network;
b. War crimes of torture and related ill-treatment by Afghan government forces, in particular the intelligence agency (National Directorate for Security), and the Afghan National Police;
c. 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.
Report on Preliminary Examination Activities: 2016, Office of the Prosecutor, International Criminal Court
The step-up in language since the 2015 report suggests that the ICC is close to launching a full investigation.
The international prosecutor has been considering whether to begin a full-fledged investigation into potential war crimes in Afghanistan for years. In Monday’s announcement, the prosecutor, Fatou Bensouda, signaled that a full investigation was likely.
Still, the prosecutor did not announce a final decision on an investigation, which would have to be approved by judges, and it is unlikely that the United States will cooperate.
U.S. Forces May Have Committed War Crimes in Afghanistan, Prosecutor Says, Somini Sengupta and Marlise Simons, New York Times
Delivering her annual report to members of the International Criminal Court (ICC) in The Hague on Monday, chief prosecutor Fatou Bensouda said she would decide "imminently" whether to ask judges for permission to launch a full-blown investigation as to whether US military forces and CIA operatives may have committed war crimes in Afghanistan through the "cruel or violent" interrogation of detainees.
ICC claims US may have committed war crimes in Afghanistan, Deutsche Welle
David Bosco, a close follower of the court, had reported two weeks ago that a full investigation seemed very near. The ICC has been under considerable pressure to show more fairness in what nations are investigated, particularly after South Africa, Gambia and Burundi recently announced their intention to withdraw from the court.
The full investigation would target crimes against humanity and war crimes alleged to be committed by the Taliban and affiliated forces as part of a widespread and/or systematic attack against civilians.
It would target the war crimes of torture and cruel treatment alleged to be committed by National Directorate of Security and other Afghan government forces, where the available information indicates plans or policies at the provincial level or below, and on large scale, but not the existence of a national plan.
And it would target the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape alleged to be committed by CIA and U.S. armed forces members, the majority of the abuses occurring in the period 2003-2004, and with reasonable basis to believe the crimes were committed in furtherance of government policy.
Afghanistan is a state party to the Rome Statute. The ICC would have jurisdiction over crimes committed on Afghan territory from May 2003 and onwards. The 2016 status report also calls attention to the allegations of torture at CIA black sites in Poland, Romania and Lithuania.
211. The information available provides a reasonable basis to believe that, in the course of interrogating these detainees, and in conduct supporting those interrogations, members of the US armed forces and the US Central Intelligence Agency (“CIA”) resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape. These acts are punishable under articles 8(2)(c)(i) and (ii) and 8(2)(e)(vi) of the Statute. Specifically:
- Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.
- Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.
212. These alleged crimes were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees. According to information available, the resort to such interrogation techniques was ultimately put to an end by the authorities concerned, hence the limited time-period during which the crimes allegedly occurred. 213. The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan.
The United States has a law enacted in 2002, casually called the Hague Invasion Act, greatly restricting U.S. government cooperation with the ICC.
The truly extraordinary action of an International Criminal Court full investigation of the United States, for the war crime of torture, “reportedly committed pursuant to plans or policies approved at senior levels of the US government, following careful and extensive deliberations,” if it should come about, would be conducted during the administration of torture proponent Donald Trump.
The results of a full investigation could potentially lead to charges being brought against individuals and the issuing of an arrest warrant. The ICC is a court of last resort, however, meaning it could only bring charges if domestic authorities were not dealing adequately with allegations.
Monday's finding marks a significant step forward in the court's decade-old examination of conflicts in Afghanistan and could draw a sharp response from a U.S. administration that is set to become less internationalist under President-elect Donald Trump.
Hague prosecutors say U.S. forces may have committed war crimes, Thoma Escritt, Reuters
The investigation could also set up a potential showdown with President-elect Donald J. Trump, who has said he supports torture as a tool of counterterrorism.
U.S. Forces May Have Committed War Crimes in Afghanistan, Prosecutor Says, Somini Sengupta and Marlise Simons, New York Times