The ICC investigates US war crimes in Afghanistan

The International Criminal Court (ICC) has taken the unprecedented decision to launch an inquiry into the United States military and its Central Intelligence Agency, relating to war crimes and crimes against humanity that arose from the conflict in Afghanistan. Afghan and Taliban troops will also be under the microscope.

The US does not recognise the jurisdiction of the court, and the Trump administration slammed the decision. Secretary of State Mike Pompeo declared it a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body. We will take all necessary measures to protect our citizens from this renegade, unlawful, so-called court.”

Seeking permission to proceed to a formal investigation, chief prosecutor Fatou Bensouda told the court she could prove that members of the US armed forces and the CIA had “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence,” in Afghanistan in 2003 and 2004, and later at CIA black sites in Poland, Romania and Lithuania. Permission was denied at first instance, but granted on appeal in The Hague.

“This decision vindicates the rule of law and gives hope to the thousands of victims seeking accountability when domestic courts and authorities have failed them,” said Jamil Dakwar, director of the American Civil Liberties Union’s human rights programme. “While the road ahead is still long and bumpy, this decision is a significant milestone that bolsters the ICC’s independence in the face of the Trump administration’s bullying tactics.”

The ICC was formed in 2002 to bring individuals to justice for crimes so grave they “threaten the peace, security and well-being of the world,” according to the preamble of the Rome Statute, which founded the court. These are genocide, crimes against humanity, war crimes and the crime of aggression. So far, the ICC has conducted a dozen investigations and indicted 45 individuals, including Libyan dictator Muammar Gaddafi, Ugandan rebel leader Joseph Kony and Sudanese president Omar al-Bashir.

The United States is not among the 123 member states of the court, and was one of seven to vote against the Rome Statute, in the company of China, Iraq, Israel, Libya, Qatar and Yemen.

In his address to the United Nations General Assembly in September 2018, Donald Trump said: “The United States will provide no support in recognition to the International Criminal Court. As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority. The ICC claims near-universal jurisdiction over the citizens of every country, violating all principles of justice, fairness, and due process. We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.

“America is governed by Americans. We reject the ideology of globalism, and we embrace the doctrine of patriotism,” he added.

The then-national security adviser, John Bolton, delivered a scathing attack on the ICC in a September 2018 speech to the Federalist Society, reiterating the administration’s position towards the court. “I want to deliver a clear and unambiguous message on behalf of the president of the United States. The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court. We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.”

In April last year, Washington revoked Bensouda’s visa, making good on threats from Pompeo that all ICC members involved in an investigation would be refused entry to the United States. “We’re prepared to take additional steps,” he told reporters in March, “including economic sanctions, if the ICC does not change its course.”

The international justice director at Human Rights Watch, Richard Dicker, responded: “The US decision to put visa bans on ICC staff is an outrageous effort to bully the court and deter scrutiny of US conduct. The ICC, despite its shortcomings, remains one of the few available tools to bring justice if national courts fail to do so.

“At a time of rampant atrocities in South Sudan, Myanmar and Syria, the US is sending exactly the wrong message in targeting ICC staff simply for doing their job — bringing justice for victims of international crimes.”

Trump has been personally criticised for his indifference towards war crimes, most notably demonstrated by pardoning Special Operations Chief Eddie Gallagher (pictured) last November. He had been convicted in July after posing for a photo with a teenage captive he’d killed with a hunting knife in Iraq in 2017.

Gallagher was accused of several war crimes by his fellow Navy SEALs. In videos obtained by the New York Times, they described him as “freaking evil”, “toxic” and “perfectly OK with killing anybody that was moving”.

Secretary of the Navy Richard Spencer refused an order from Trump to reverse Gallagher’s demotion handed down at his conviction. In a forced resignation letter to the president, he said, “I no longer share the same understanding with the Commander-in-Chief who appointed me, in regards to the principle of good order and discipline. I cannot in good conscience obey an order that I believe violates the sacred oath I took in the presence of my family, my flag, and my faith to support and defend the Constitution of the United States.”

In November, Trump also pardoned former army officer Clint Lorance, who was sentenced to 19 years in prison for murdering two Afghan civilians, and Major Mathew Golsteyn, who was facing similar charges.

The ICC investigation will focus on matters that have not been prosecuted by a domestic jurisdiction, and that occurred since May 2003. Even if US citizens are charged as a result, they are unlikely to face trial as the ICC is unable to make arrests and will certainly not receive the support of United States in doing so.

The United States’s criticism of the ICC further alienates it from the international community, following its withdrawal from the Paris Agreement and the Trans-Pacific Partnership, the assassination of Iranian General Soleimani, its reversal of the ban on anti-personnel landmines, and Trump’s unwavering “America First” nationalism.

The decision to proceed with the investigation came just days after the United States signed an agreement with the Taliban that will lead to the withdrawal of its troops after nearly two decades of fighting.