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ICC Afghanistan Investigation may put US Personnel in the Dock

06 Nov 2017
Permanent Premises of the International Criminal Court

Last week’s decision by the International Criminal Court to investigate Afghanistan will potentially bring the activities of American agencies – such as rendition – under its jurisdiction for the first time. But many hurdles remain.

Last Friday, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, announced that she had filed a request with the judges to open an investigation into the situation in Afghanistan. The announcement (and the inevitable opening of the investigation) is significant for a number of reasons.

First, the request is the culmination of a 10-year investigation, where the court has been reviewing evidence in order to determine whether or not to proceed with an investigation. While the court has a reputation for moving slowly, supporters and opponents of the court had become frustrated with semi-regular announcements that an investigation was ‘imminent’.

Second, after Georgia, this investigation will become only the second outside of Africa.

Third, and arguably of most interest, is that this investigation opens the possibility that for the first time, American service personnel will come under the jurisdiction of the ICC. While the United States is not a signatory to the Rome Statute, “the Court asserts jurisdiction over any Rome Statute crimes committed on the territory of Afghanistan during the relevant period, regardless of the nationality of the alleged perpetrator (an assertion of jurisdiction that the US disputes)”.

It is worth noting that the Office of the Prosecutor (OTP) made it clear in her 2016 Report on Preliminary Examination Activities that the primary focus of any Afghanistan investigation would be on alleged war crimes and crimes against humanity committed by “the Taliban and their affiliated Haqqani Network”. Nonetheless, the report also determines that “there is a reasonable basis to believe” that US military forces deployed to Afghanistan committed “war crimes of torture and related ill-treatment”. Detailing these alleged crimes, the OTP’s report goes on to say:

“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.”

If the 2016 report serves as an accurate guide to the indictments that the OTP will pursue, then the CIA’s program of extraordinary rendition, whereby the CIA conducted interrogations in so-called black sites in Poland, Lithuania and Romania—all states party to the Rome Statute—will also be investigated (a first for the ICC).

The court finds itself between the proverbial rock and hard place. Its remit is to ensure that that “the most serious crimes of concern to the international community as a whole must not go unpunished”. But it has not always been able to do this (Syria as a perfect case in point). Furthermore, the ICC has often being criticised for its alleged ‘Africa bias’, coupled with a perception that global powers are immune from the court’s purview. Much of this criticism has come from the African Union, which has pointed to the ICC’s failure to open investigations into the conflicts in Iraq and Afghanistan as evidence of the court’s impotence with respect to the great powers.

Therefore, the decision to open an investigation in Afghanistan is positive for at least two reasons. First, it offers the possibility that US troops will be held accountable for their actions via a genuinely independent legal mechanism, which in turn strengthens efforts for global justice. Second, it lends the ICC greater legitimacy through placating the (ill-founded) criticisms that it is merely a Western tool of neo-colonial oppression.

But an investigation in Afghanistan will most probably create new political issues for the ICC. The reaction from the United States will be of most interest. The US has moved beyond the open hostility that characterised its relationship with the ICC during the first half of the George W. Bush administration, to a point where the Barack Obama administration was actively engaged with the court (although no closer to re-signing the Rome Statute).

Nonetheless, presidents Bush and Obama were unequivocal in their stance that no American soldier would face trial in The Hague, and, although there has been no official announcement, it is unlikely President Trump would differ from this stance. Indeed, if previous reactions to institutions that don’t serve the interests of the Trump administration are anything to go by, we might well be returning to a situation of open hostility towards the court. As a non-state party, the US is also under no obligation to cooperate with the investigation.

Furthermore, although Afghanistan is a state party, it has not asked for this investigation (the investigation was opened on the prosecutor’s authority; proprio motu). Expressing frustration with the OTP’s decision, a senior advisor to the President of Afghanistan, Ashraf Ghani, argued that “with the measures that we have taken so far, we would have preferred that our domestic system be further enabled to deal with these obligations”. While Afghanistan is obliged to cooperate with the OTP, the ICC’s Kenya experience shows that cooperation is not always forthcoming.

The ICC is heavily dependent on the cooperation of states to collect information. Considering that neither Afghanistan nor the United States is supportive of this investigation, and that the US remains resistant to the court’s authority, there is a real possibility that the investigation will not only be time consuming and expensive, but worst of all, result in no cases or arrests.

The OTP had no choice other than to request an Afghanistan investigation, if only to ensure the legitimacy of the court. But a combination of renewed US aggression towards the court, and an uncooperative Afghanistan government, makes this a bold decision without any obvious tangible upsides.

Dr Matt Killingsworth is a senior lecturer in international relations and head of the Politics and International Relations Discipline in the School of Social Sciences at the University of Tasmania.

This article is published under a Creative Commons Licence and may be republished with attribution.