The chief prosecutor for the International Criminal Court has announced her intention to seek an investigation into possible war crimes and crimes against humanity committed in Afghanistan since May 2003, when Afghanistan became a member of the court. If the investigation goes ahead, it would be one of the first ICC investigations to focus on a country outside of Africa and, perhaps even more significantly, the probe could involve American troops.
Prosecutor Fatou Bensouda’s decision to seek a formal investigation into Afghanistan comes after last year’s ICC report on preliminary examination activities found that both the Taliban and Afghan government forces may have committed war crimes in Afghanistan. The Taliban was also accused of committing crimes against humanity. Significantly, the report also found that US military forces and CIA agents operating secret detention facilities may have committed “war crimes of torture and related ill-treatment” in Afghanistan between 2003 and 2014. These alleged crimes “were not the abuses of a few isolated individuals,” the report notes, but rather appear to have been committed by American forces “as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees.”
As the Associated Press reports, an Afghanistan probe would be exceptional because all previous ICC trials have dealt with alleged crimes in Africa. In fact, the only case currently under ICC investigation outside Africa is in Georgia, a former Soviet republic. It would also be significant because any investigation is likely to include a probe into the role of American troops in Afghanistan – a move that is likely to spark controversy in the United States. Although the United States has not joined the ICC, the court has jurisdiction over crimes committed on the soil of member states – including abuses committed by people who are citizens of countries that are not ICC members. Since Afghanistan is a member of the court, an ICC investigation into war crimes in Afghanistan could potentially encompass American troops.
Bensouda’s decision to seek a formal investigation was welcomed by human rights groups. Human Rights Watch’s International Justice Director, Richard Dicker, said that “thousands and thousands of Afghans have suffered horrendous human rights abuses and war crimes over the years and there has been no accountability.” Bensouda’s announcement was therefore important, he said, because it “opens the door to the possibility that for the first time there may be some justice possible for the victims.” Amnesty International’s Head of International Justice, Solomon Sacco, called the investigation request a “seminal moment” for international justice, while Katherine Gallagher from the Center for Constitutional Rights told the Associated Press that the possibility of Americans being charged sends a “long overdue message that no one is above the law.”
While it is yet to be seen whether the ICC panel of judges will approve Bensouda’s request for a formal investigation into Afghanistan, or what the scope of any such investigation might be, the decision to seek an investigation is an important step towards achieving justice for the Afghani people caught up in a long and violent conflict. As Human Rights Watch’s Param-Preet Singh, Associate Director of the International Justice Program, points out, the possibility that a future ICC investigation may look at abuses not just by Taliban and Afghan government forces, but also by American troops, “drives home the point that with this court, nationals from more powerful countries do not necessarily stand outside the law.”
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