US threatens Intl. Criminal Court as prosecution for war crimes in Afghanistan looms

A pre-trial chamber of the court will soon decide on a prosecutor’s request for investigating the US army and the CIA for war crimes and crimes against humanity in Afghanistan

September 11, 2018 by Pavan Kulkarni
The torture of prisoners at Bagram base was among the issues highlighted before the court. Photo: Smith/Flickr

US national security adviser John Bolton has threatened severe action against judges and prosecutors of the International Criminal Court (ICC) if its pre-trial chamber gives permission to investigate the US army and the CIA for war crimes in Afghanistan. Bolton threatened that the entry of the judges into the US could be barred, their funding could be blocked and they could even be prosecuted if the judges gave ICC prosecutor Fatou Bensouda the permission to conduct the investigation into war crimes and crimes against humanity.

Extending the scope of the threat beyond ICC, Bolton added that “any company or state that assists an ICC investigation of Americans”, would also be prosecuted in US courts.

Ranting against the court, which he deemed to be a threat to “US national security” and to “American sovereignty” – perhaps forgetting that the sovereignty of US does not extend to Afghanistan – Bolton said, “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.”

Bolton, in his address, also raged against the attempts by Palestinian authorities to move the ICC to investigate the atrocities committed by Israeli forces in the occupied territories. But his primary focus was on the possibility of ICC investigating US personnel. The US, he said, would also seek to sign “binding, bilateral agreements” to prohibit other countries from submitting to the ICC any complaints against US citizens.

White House Spokesperson Sarah Sanders later added that the president would use “any means necessary to protect our citizens [and] those of our allies from unjust prosecution from the ICC”.

The line of using “all means necessary” to protect US security personnel from being tried by the ICC is not something unique to the Trump administration. In fact, it is part of the American Service-Members Protection Act, which was passed in May 2002 by the Bush administration, only a month after the Rome Statute became effective.

It was in November last year that the prosecutor – after concluding from a preliminary examination that “there is a reasonable basis to believe that war crimes and crimes against humanity have been committed” – requested the pre-trial chamber to be allowed to proceed with the investigation of the alleged crimes committed either in the territory of Afghanistan, or in detention centers in other countries, falling under the court’s jurisdiction, where those detained in connection to the Afghanistan conflict were held.

While the prosecutor has sought to investigate alleged crimes falling under Rome Statute committed by Taliban, the Afghan security forces and the US forces, it the latter that has come under spotlight for its threats to retaliate against ICC judges.

The alleged violations she has sought to investigate are those committed after May 1, 2003, which is the date from when Afghanistan came under the jurisdiction of the court after it ratified the Rome Statute the previous month.

A majority of the alleged crimes committed by US forces in the secret detention centres she intends to investigate were committed between May 2003 and December 2004, when, according to ICC prosecutor’s preliminary report of 2014, “Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan..” However, systematic violations, including rapes of the detained, have continued “in some cases until 2014.”

“These alleged crimes were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees.. The information available suggests that victims were deliberately subjected to physical and psychological violence, and that crimes were allegedly committed with particular cruelty and in a manner that debased the basic human dignity of the victims. The infliction of “enhanced interrogation techniques,” applied cumulatively and in combination with each other over a prolonged period of time, would have caused serious physical and psychological injury to the victims,” the report states.

At the US built and run detention center in the town of Bagram, which was later handed over to Afghan authorities, detainees were forced to play “Russian roulette with guns, held in stress positions for days… Abuses which destroyed the men both physically and mentally”, according to the director of the charity called Reprieve, which has made several submissions to the ICC.

The psychological impact of these abuses has remained with the victims who are haunted by its memory long after they were subjected to the said abuse. It was reported that the victims “exhibited psychological and behavioral issues, including hallucinations, paranoia,insomnia, and attempts at self-harm and self-mutilation.”

“The gravity of the alleged crimes is increased by the fact that they were reportedly committed pursuant to plans or policies approved at senior levels of the US government, following careful and extensive deliberations,” the ICC prosecutor’s report adds.

After the ICC prosecutor formally requested the pre-trial chamber for permission to proceed with the investigation, the judges called on the victims who allege that Rome Statute crimes were committed against them, either in Afghanistan or in another state which has ratified the Rome Statute in connection with the conflict in Afghanistan. This period for sending representations ended on January 31, following which, on February 20, a final report of the victim,  representations, “containing an overview of the victim representations process, as well as details and statistics of the transmitted representations”, was sent to the judges, based on which the decision will be made about whether or not to permit the prosecutor’s request.

While Bolton has objected on the grounds that neither Afghanistan nor any other countries that have signed to ICC’s statute have made a request for the ICC’s investigation, such a request, as per relevant international laws, is not necessary for the prosecutor to carry out an investigation.

The US, which was on board during the establishment process for the court in 2000, refused to ratify it under the Bush administration. Former president Obama made some friendly gestures towards the court, even he too chose not to ratify the Rome Statue.

However, the fact that Afghanistan has ratified it gives the ICC the jurisdiction to investigate war crimes and crimes against humanity committed by all, including foreign forces operating within country or in other member countries where those detained in connection with the Afghan conflict may have been subjected to crimes.

Nevertheless, it remains to be seen whether the ICC will flex its muscle against the US, which is known to have little respect for international laws, or will continue to be known as a weak body which goes after easy targets, predominantly from Africa – an image that has pushed the African Union to urge its member states to withdraw from ICC.

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