Hague Court Reopens Probe of US War Crimes in Afghanistan

THE HAGUE, Netherlands (CN) — American soldiers could face charges for war-time abuses in Afghanistan after the International Criminal Court ruled Thursday to reopen an investigation.

“The prosecutor is authorized to commence an investigation into alleged crimes committed on the territory of Afghanistan since May 1, 2003,” presiding Judge Piotr Hofmanski said, reading from a 35-page decision to smiles in The Hague courtroom.

Appellate judges at the the International Criminal Court met in late 2019 to consider a pretrial decision that ended a probe of perceived war crimes in Afghanistan. This Dec. 4 image shows, from left to right, presiding Judge Piotr Hofmański, Judge Howard Morrison, Judge Luz del Carmen Ibáñez Carranza, Judge Solomy Balungi Bossa and Judge Kimberly Prost.

Fatou Bensouda, prosecutor for the court, had requested its authorization in 2017 to investigate whether the Taliban, the Afghan government and the United States armed forces committed war crimes during the ongoing conflict in the Middle Eastern country.

When U.S. Secretary of State Mike Pompeo in turn revoked Bensouda’s visa, and warned that anyone else from the ICC involved in the Afghanistan investigation would face similar repercussions, a lower chamber of the court determined that an investigation of the apparent atrocities would likely be frustrated by the “scarce cooperation obtained by the prosecutor.”

The decision not to investigate drew widespread criticism from victims and human rights organizations who appealed the decision. During hearings in December as to whether the pretrial chamber had erred in its decision, the government of Afghanistan argued that, despite being a party to the Rome Statute, it did not want the ICC to investigate crimes in the country. “It is our responsibility to bring justice for our nation,” said Homayoon Azizi, Afghanistan’s ambassador to the Netherlands, who is representing Afghanistan at the court.

The United States declined to participate, but one of President Donald Trump’s personal lawyers, Jay Sekulow, appeared in December on behalf of the American Center for Law and Justice, a conservative legal advocacy organization.

“The fact is that the United States has a very comprehensive system of military justice,” Sekulow told reporters.

In a press conference Thursday, Secretary of State Pompeo attacked the Thursday’s reopening of the investigation as a “reckless” move in the wake of a new U.S.- Afghanistan peace deal.

“This is a truly breathtaking action by an unaccountable political institution masquerading as a legal body,” Pompeo told reporters.

Pompeo said the public can expect an announcement in the coming weeks about the country will do “to ensure that American citizens are not hauled before this political body to settle a political vendetta.”

The ICC is considered to be a court of last resort, only trying crimes that national courts are unwilling or unable to bring to justice.

Chief prosecutor Fatou Bensouda at the International Criminal Court in The Hague, Netherlands, on April 4, 2018. (AP Photo/Peter Dejong, Pool)

Prosecutors there accuse the CIA of having tortured at least 24 suspects at secret “black site” detention facilities in Lithuania, Poland and Romania, all of which are parties to the Rome Treaty, between 2003 and 2004.

Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, is representing two of the victims in the case, Sharqawi Al Hajj and Guled Hassan Duran. Both remain detained at Guantanamo Bay after being tortured in multiple CIA black sites.

“Today, the International Criminal Court breathed new life into the mantra that ‘no one is above the law’ and restored some hope that justice can be available — and applied — to all,” Gallagher said Thursday.

Regardless of the outcome of the investigation, it’s unlikely a trial will ever be held. Afghanistan is a party to the Rome Treaty, but the United States is not, so the U.S. would not extradite anyone for trial. A 2002 bill, nicknamed the Hague Invasion Act, gives the president military force to remove any U.S. citizens detained by the ICC.

In 2019, then-U.S. national security adviser John 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.”

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