The ICC: War crimes in Afghanistan and beyond

Fatou Bensouda’s announcement is a very courageous move to try the real culprits of CIA, American Establishment and their mango-twigs who have remained untouched for more than 73 years.

by Anwar A Khan-Sep 15, 2018

( September 15, 2018, Dhaka, Sri Lanka Guardian) The International Criminal Court (ICC) is an intergovernmental organisation and international tribunal that sits in The Hague in the Netherlands. The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes. The ICC is intended to complement existing national judicial systems and it may, therefore, only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer situations to the Court. The ICC began functioning on 1 July 2002, the date that the Rome Statute entered into force. The Rome Statute is a multilateral treaty which serves as the ICC’s foundational and governing document. States which become party to the Rome Statute, for example by ratifying it, become member states of the ICC. Currently, there are 123 states which are party to the Rome Statute and therefore, members of the ICC.

The ICC’s Office of the Prosecutor has opened ten official investigations and is also conducting an additional eleven preliminary examinations. Thus far, 39 individuals have been indicted in the ICC. Last November The ICC’s Chief prosecutor, Fatou Bensouda of Gambia, said the investigation would focus on war crimes by members of the United States armed forces” and secret detention facilities in Afghanistan used by the CIA, particularly in 2003 and 2004. She said the Taliban and its affiliated Haqqani network, as well as the Afghan National Security Forces, would also be investigated. Bensouda said her office “has determined that there are no substantial reasons to believe that the opening of an investigation would not serve the interests of justice, taking into account the gravity of the crimes and the interests of victims.”

America has said it would refuse to cooperate in any way with the International Criminal Court in The Hague if it carries out a prospective investigation into allegations of war crimes by US military and intelligence personnel in Afghanistan. At the same time, Bolton announced that the US State Department is shutting down a Palestinian Liberation Organization office in Washington in response to Palestinian efforts to have the court prosecute Israeli actions and because the Palestinians have rejected direct negotiations with the Jewish state on a peace treaty.

The Trump administration initially announced it would close the PLO office last year for its efforts to get the ICC to investigate Israel, but later reversed its decision. Palestinian President Mahmoud Abbas has asked the international court to investigate and prosecute Israeli officials for their involvement in settlement activities and aggressions against our people. Palestinian official Saeb Erekat said the Trump administration move to close the office will not deter his government from going to the ICC.  “The rights of the Palestinian people are not for sale, that we will not succumb to US threats and bullying,” he has said.

Bolton called the ICC fundamentally illegitimate and an assault on the constitutional rights of the United States. He said if the ICC carries out the investigation of US military actions in Afghanistan, the US would ban its judges and prosecutors from entering the country, freeze any funds they have in US financial institutions, and attempt to prosecute them in US courts.

The ICC as reported recently in the international media that it may soon formally announce an investigation of allegations of misconduct by members of the US military and the Central Intelligence Agency. The ICC is designed to be permanent and independent of national governments as it investigated war crimes, crimes against humanity and genocide. But Bolton has said the ICC has been ineffective and unaccountable. But look at America’s National Security Adviser John Bolton’s temerity, he has called the American war criminals as “American patriots.” Bensouda said her office “has determined that there are no substantial reasons to believe that the opening of an investigation would not serve the interests of justice, taking into account the gravity of the crimes and the interests of victims.”

Amnesty International official Adotei Akwei immediately rebuked the US position, saying its rejection of the ICC’s legitimacy is an attack on millions of victims and survivours who have experienced the most serious crimes under international law and undermines decades of groundbreaking work by the international community to advance justice. Akwei has said the US should sign the Rome agreement creating the court and support — not impede — its investigations. The ICC prosecutes the most serious crimes under international law — genocide, war crimes, crimes against humanity, and the crime of aggression. Akwei has also added, “Resuming attacks against the court sends a dangerous signal that the United States is hostile to human rights and the rule of law.”

The ICC Chief Prosecutor recently announced her decision to request an authorisation to open a formal investigation into possible international crimes committed in connection with the conflict in Afghanistan and elsewhere in the world. The outcome of her preliminary examination was long-awaited and expected to be significant because an investigation into the Afghanistan situation would cover all parties involved – that is, not only local actors but also the international coalition, including the US and US nationals would come under the jurisdiction of the Court if they committed crimes in Afghanistan or in any other State party to the Rome Statute.

The Chief Prosecutor’s choice to subject some aspects of the Afghan conflict to judicial scrutiny despite the pressures deserves to be praised as an act of bravery. Fatou Bensouda intends to prosecute acts of torture committed in CIA detention facilities located in Europe, in connection with the armed conflict in Afghanistan, as war crimes. If she does, the Afghanistan investigation may help highlight many overlooked aspects of war crimes, political killings… committed by CIA and American Establishments for more than 7 decades across the globe including the brutal murder of Bangladesh’s Founding Father Bangabandhu Sheikh Mujibur Rahman.

In its public announcement, the ICC Chief Prosecutor has indicated that she will focus, in conformity with the ICC’s jurisdiction, solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.

War crimes closely linked to the situation in Afghanistan, but committed elsewhere like Iraq, Libya, Syria…allegations of torture and other forms of ill-treatment committed as part of the infamous CIA’s extraordinary rendition programme. The programme implicated the rendition, detention and interrogation of terrorism suspects, with the support of at least 54 States. Some of them, like Poland, Lithuania and Romania, hosted CIA-run secret facilities where detainees were allegedly ill-treated. These three States are parties to the Rome Statute, and as a result, the ICC’s jurisdiction extends to their territory. In her 2016 Preliminary Examinations report, the Chief Prosecutor has already mentioned her determination that there is a reasonable basis to believe that: “War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.”

Looking into the future – and acknowledging that the prospect of an indictment of CIA operatives is not distant, to say the least – if these crimes are ever to be prosecuted by the ICC. Indeed, the ICC has territorial jurisdiction in Poland, Lithuania and Romania. So, the American misdeed-mongers’ acts come under the material jurisdiction of the Court and qualify as war crimes. Because war crimes are serious violations of IHL under the Rome Statute and customary international law, this question preliminarily depends on whether IHL applied to these acts.

War crime courts have usually followed a two-prong inquiry to answer this question: 1) is there an armed conflict and 2) is there a nexus between the conduct and this armed conflict? That a non-international armed conflict (NIAC) involving the US (or two if the Taliban and Al-Qaeda are considered two distinct parties) existed at the time of the alleged acts of ill-treatment is beyond reasonable doubt. In addition, based on the nexus jurisprudence of the ICC and other international and national war crime courts, finding a sufficient nexus in this case should not raise any major issue. The Prosecutor would apparently focus on individuals captured in the context of the armed conflict in Afghanistan, such as presumed members of the Taliban or Al Qaeda transferred to these CIA-run sites. The victim’s affiliation with the Taliban or Al-Qaeda would indeed be sufficient to prove a sufficient nexus (actual membership would not be required; perceived support for one of the enemies of the US would be sufficient to meet the nexus requirement).

However, in deciding whether IHL applied to these alleged acts of torture, ICC judges would likely have to rule on a defence challenge that IHL did not apply there, beyond Afghanistan’s borders. The ICTY, ICTR and ICC (and other war crime courts) have had to decide on the geographical reach of IHL within the territory of States where a NIAC was taking place, but not beyond such territory and the ICTY’s jurisdiction extended only to the territory of the former Yugoslavia, the ICTR’s only to Rwanda and its neighboring States; the ICC, whose territorial jurisdiction is not so limited, has not had to rule on such a scenario yet. The prosecution of acts of torture committed in CIA-run sites in Poland, Lithuania or Romania would be the first time – to the best of our knowledge – a war crime court has to rule on the applicability of IHL to conducts linked to a NIAC occurring in another non-neighboring State. The same would be true if State courts decide to prosecute these crimes, acting under the catalytic effect of the ICC complementarity principle – on which Bensouda insists in her announcement.

Fatou Bensouda’s announcement is a very courageous move to try the real culprits of CIA, American Establishment and their mango-twigs who have remained untouched for more than 73 years. They have many hats and many faces while committing grievous acts in countries after countries according to their free-will. They must be brought to justice in no time and to do this the ICC has larger roles. We hope the ICC must show enough courage to show the bright light to the world. If they succeed, the names of ICC and its leaders will be inscribed in golden letters. And they would receive high commendation from all peace and freedom-loving people all over the world. The world will then be a better place for people for living in peace and harmony. It must happen sooner and then the whole world would come to know how much horrific crimes they committed to the mankind across the world since long. The writer believes that the court’s proceedings, once divulged, would shake the whole world! And people all over the world should extend their fullest support and cooperation to them in clear and louder tones to successfully carry out this sacred task for the greater good for us all in the world planet.

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The writer is based in Bangladesh and writes about politics, political and humanist figures and international affairs.