Afghan Probe by International Court Could Entangle CIA

(CN) — A year after compiling possible war crimes by U.S. forces and the Taliban, the chief prosecutor for the International Criminal Court unveiled plans Friday to investigate crimes against humanity in Afghanistan.

“For decades, the people of Afghanistan have endured the scourge of armed conflict,” Fatou Bensouda said in a video announcement from The Hague. “Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met.”

Friday’s declaration falls nearly a year to the day that Bensouda released preliminary findings that attributed possible war crimes in Afghanistan to the American military.

“Members of U.S. armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014,” the Nov. 14, 2016, report said.

Another finding of the report indicated that CIA agents may have committed war crimes in Afghanistan and other countries that signed the Rome Statute, the ICC’s authorizing treaty.

“Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other states parties to the statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008,” the 74-page report said (parentheses in original).

Bensouda did not mention U.S. forces in her latest announcement, but her remarks about the scope of the investigation she seeks to carry out line up chronologically with her earlier report.

“Given the limited temporal scope of the court’s jurisdiction, my request for judicial authorization will focus 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,” the prosecutor said Friday.

Asked for its reaction to the announcement, the CIA referred comment to the State Department. That agency did not respond by press time.

Human rights groups meanwhile applauded Bensouda’s announcement.

“Generations have suffered from the international crimes that have been committed in Afghanistan, where there is neither peace nor any genuine accountability process, including before the domestic courts,” Guissou Jahangiri, vice president of the International Federation for Human Rights, said in a statement.

“The situation in Afghanistan is still not changing,” Jahangiri continued. “Now it’s the time for the ICC to step in.”

Jamil Dakwar, the human rights program director for the American Civil Liberties Union, emphasized that it was the U.S. failure to prosecute torture domestically that brought possible international intervention.

“This investigation would be unnecessary if the U.S. government had sought to hold U.S. officials accountable for torture,” Dakwar said in a statement. “We hope that today’s decision will lead to an investigation that may provide victims of U.S. torture and abuse an opportunity to seek justice for the atrocities they suffered in U.S. custody in Afghanistan. If authorized, the full investigation would send a clear signal to the Trump administration and other countries around the world that torture is categorically prohibited, even in times of war, and there will be consequences for authorizing and committing acts of torture.”

Richard Dicker, international justice director at Human Rights Watch, said he looked forward to reviewing the scope of Bensouda’s requested investigation once it becomes public.

“Having documented egregious crimes in Afghanistan that have gone unpunished over many years, we hope this step will open a path to justice for countless victims there,” Dicker said in a statement.

Param-Preet Singh, associate director of Human Rights Watch, said Bensouda has put the CIA on notice.

“That does seem to flag what she said last November, when she said she was looking at possible abuses by Central Intelligence Agency officials,” Singh said in a phone interview.

Katherine Gallagher, a staff attorney with the Center for Constitutional Rights, drew the same conclusion.

“The opening of a comprehensive investigation into the Afghanistan situation would be the first time that U.S. nationals from the military, the CIA, or private contractors could be held criminally accountable for war crimes and crimes against humanity committed in Afghanistan or at other locations where detainees arrested in Afghanistan were tortured,” Gallagher said in a statement.

“This long overdue message that no one is above the law is particularly important now, as the Trump administration ramps up military machinations in Afghanistan and embraces endless war with no plan for and end in sight,” Gallagher added.

In a Skype interview, Gallagher noted that Bensouda burnished a reputation as an independent prosecutor whose actions deflate criticism that the international court exclusively focuses on the African continent.

”It is the rubber hitting the road,” she said.

A human rights attorney who has taken on atrocities around the world, from Iraq to the former Yugoslavia to Kosovo, Gallagher said that the prosecutor’s actions today send a strong message against impunity in a country torn by more than a decade of war.

“I think she is reasserting or reminding all states that her mandate allows her to hold the most responsible, and that could include the most powerful, accountable for these serious crimes,” she said.

Since Bensouda set her lens since May 2003, Gallagher said that this could include any actions in the ongoing war, including President Donald Trump’s recent use of the so-called “Mother of All Bombs,” or MOAB, in April.

Trump floated the idea of withdrawing funding from the international court shortly after his inauguration.

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