In early November, International Criminal Court (ICC) Prosecutor Fatou Bensouda announced that she was seeking authorization from the judges of the Court to open an investigation into alleged war crimes in Afghanistan. Under the 1998 Rome Statute, the ICC has jurisdiction over the most serious crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. In the case of Afghanistan, the Prosecutor’s office has determined that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed. Most significantly, such crimes are not only alleged to have been committed by the Taliban and Afghan security forces, but also by United States military personnel and CIA officers. This will present a challenge to not only the United States and its relations with the Court, but also potentially the legitimacy of the ICC itself.
Human Rights Watch welcomed the move, with the director of the group’s International Justice Program stating that he hoped the Court’s actions would “open a path to justice for countless victims there.” However, because the United States is not a Party to the Rome Statute, and both Republican and Democrat presidents have consistently opposed becoming a Party, it is unlikely that any individual cases will be brought before the Court. According to Stephen Pomper of the International Crisis Group, the United States will likely aim to maintain a low-key public approach, attempting to ensure that relations with the court are not irreversibly damaged yet still maintaining a vigorous defence of its military and intelligence personnel.
Most of the crimes alleged to have occurred were committed by the Taliban; according to the most recent report by the ICC on its Preliminary Examination Activities, the Taliban and their affiliates have been responsible for over 17,000 civilian deaths in the years 2007 to 2015, constituting crimes against humanity and war crimes. Afghan authorities are also alleged to have committed war crimes as a result of the prevalence (35-50%) of conflict-related detainees being subjected to torture. It is the allegation of war crimes of torture by members of the U.S. armed forces and CIA that is most likely to complicate the Court’s efforts, however. The report alleges that 61 persons were subjected to torture and related cruel treatment by U.S. military personnel, and 27 by the CIA. Although the scale of these alleged crimes is not even close to those of the Taliban and Afghan authorities, the severity of these actions, the fact that it was part of official state policy in the country, and the United States global stature are all reasons to warrant further investigation by the ICC. It is up to the United States to calibrate a response that does not risk compromising its ability to collaborate with the Court in the future. As Pomper argues, the United States has relied on the ICC to deter or mitigate mass atrocities in nations where they lack the capacity to do so. Indeed, the Court has almost solely focused on African nations in the past.
By seeking to investigate the case, the Court has demonstrated its role as an independent and effective legal institution on the international scene. Although it is unlikely to prosecute any U.S. personnel, by investigating and publicizing the alleged crimes committed on all sides it has brought attention to the issue of conduct during the conflict. Hopefully, the assertiveness of the ICC will serve to some extent as a deterrent on both state and non-state actors in the future.