THE HAGUE (Dispatches) -- The International Criminal Court appears to be poised to open a formal investigation into war crimes committed by American forces and CIA officers in Afghanistan, despite the threat of U.S. sanctions.
A pre-trial chamber at The Hague-based ICC is currently considering a request from the court’s prosecutor, Fatou Bensouda, that all three main parties to the war in Afghanistan – the Taliban, the Kabul government and the United States – be subject to a formal investigation.
Leading international lawyers spoken to by Middle East Eye agree that the legal tests that must be considered by the ICC have been met, and that a war crimes investigation now appears inevitable. Some suggest that a failure to investigate would be "scandalous”, and fatally undermine the stature of the court.
However, a formal investigation will set the ICC on a collision course with the United States government, which has made clear it intends to thwart the inquiry – an outcome that would also damage the court’s reputation.
As a consequence, observers say, a court that was established to "guarantee lasting respect for the enforcement of international justice” is now considering not only its responsibilities in law, but also how best to secure its own future.
Last month U.S. National Security Advisor John Bolton made clear that his government would not only refuse to cooperate, but would ban Bensouda and her ICC colleague from entering the country, seize their assets and even prosecute them in the U.S. criminal courts.
In a speech, Bolton said an inquiry into war crimes in Afghanistan would be an "utterly unfounded, unjustifiable investigation”.
The U.S.-led invasion of Afghanistan in October 2001 came just weeks after the 9/11 Al-Qaeda attacks in New York and Washington and quickly led to the fall of the Taliban government in Kabul.
But U.S. and allied forces remained bogged down for years in a violent conflict, and the Taliban and other militant groups continue to control large areas of the country.
"If the court comes after us, Israel, or other U.S. allies we will not sit quietly,” Bolton said. "We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead.”
The U.S. has not ratified the Rome Statute, the piece of international law that established the ICC in 2002 in order to prosecute genocide, crimes against humanity, war crimes and crimes of state aggression.
Afghanistan has ratified the statute, however, meaning the court has jurisdiction over crimes committed as a consequence of the war in that country since 1 May 2003.
The ICC has told the U.S. government that the pre-trial chamber is on the verge of making its decision, according to White House press secretary Sarah Sanders.
Lawyers spoken to by Middle East Eye believe it will be difficult for the ICC to refuse Bensouda’s request because of the wealth of evidence that significant numbers of war crimes have been committed in Afghanistan.
In the case of the U.S., this evidence includes the 2014 U.S. Senate Intelligence Committee report, which drew upon the CIA’s own records to document human rights abuses that the agency committed in a global network of secret prisons; reports by the International Committee of the Red Cross; and findings by the European Court of Human Rights.
The U.S. government may seek UN Security Council permission to delay any investigation, however.
The UN Security Council can defer a formal investigation if nine members agree, as long as none of the five permanent members – the U.S., Russia, the UK, France and China – veto such a move.
In a preliminary report in 2017, Bensouda said there was a reasonable basis to believe that U.S. forces personnel and CIA officers had been involved in the war crimes of torture and rape, and that the crimes committed at the agency’s so-called black sites in countries including Poland, Lithuania and Romania, had been "committed with particular cruelty”.
A number of the detainees held at these sites were then consigned to the U.S. detention facility at Guantanamo Bay in Cuba.