The International Criminal Court has authorized a formal investigation of alleged war crimes by U.S. and Taliban forces in Afghanistan, setting the stage for a confrontation with U.S. President Donald Trump’s administration.
The decision Thursday by senior ICC judges in The Hague has sparked widespread praise from human-rights groups, but it triggered a vehement reaction from the Trump administration, which has already threatened to impose financial sanctions and visa bans on any ICC officials who assist in an investigation of U.S. citizens.
U.S. Secretary of State Mike Pompeo called it a “reckless” decision by a “renegade” court. He promised more measures to shield U.S. citizens from the court.
“This is a truly breathtaking action by an unaccountable, political institution masquerading as a legal body,” he told reporters in Washington.
The investigation could mark the first time U.S. officials are held criminally liable for involvement in the torture of detainees in Afghanistan. The investigation will also examine alleged crimes by the Taliban and by Afghan security forces.
The ICC’s chief prosecutor, Fatou Bensouda, reported in 2016 that there is a “reasonable basis” to believe that U.S. soldiers and agents of the Central Intelligence Agency committed war crimes such as torture and rape in Afghanistan.
At least 61 Afghan detainees appear to have been subjected to “torture, cruel treatment [and] outrages upon personal dignity” by U.S. soldiers between 2003 and 2014, while CIA agents “appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape” from 2002 to 2008 in Afghanistan and in secret detention centres in Poland, Romania and Lithuania, the prosecutor said in her report.
These alleged crimes “appear to have been committed as part of approved interrogation techniques,” she said.
While the United States is not a member of the ICC, its military forces and CIA agents could be subject to the court’s investigation because their alleged crimes were committed in ICC member countries, including Afghanistan and the Eastern European countries.
The Trump administration has fought tooth and nail against the proposed ICC investigation, revoking Ms. Bensouda’s entry visa last year. She responded by saying she would not be deterred from her investigation and has continued to visit United Nations headquarters in New York to give briefings to the UN Security Council.
Ms. Bensouda requested the ICC’s authorization for her investigation in 2017, but her request was rejected last year by the ICC’s Pre-Trial Chamber, which ruled that the investigation would not serve the “interests of justice” because it was unlikely to receive sufficient co-operation from Afghanistan, the United States and others.
She appealed the ruling, and a hearing was held in December. On Thursday the court’s appeals chamber authorized the investigation, ruling that the lower court has misinterpreted some of the court’s rules.
The lower court’s reasoning about the “interests of justice” was “cursory, speculative and did not refer to information capable of supporting it,” the appeals chamber said.
“There is no indication that the Pre-Trial Chamber considered the gravity of the crimes and the interests of victims as articulated by the victims themselves,” it added.
The appeals chamber also rejected the lower court’s argument that the prosecutor’s investigation should be limited to incidents that were mentioned in her original report. No such limit should be imposed, the appeals chamber ruled.
The ICC’s decision Thursday could help defuse criticism of the court by African politicians, who have long complained that the ICC is focusing on crimes in Africa rather than crimes by more powerful countries in Europe and North America.
The ruling could also have implications for Canada. Human-rights activists have long called for an investigation of possible war crimes by Canadian troops who transferred Afghan detainees into the custody of Afghan security forces when torture was common in detention facilities. An open-ended investigation by the ICC could look at Canadian actions in Afghanistan.
Human-rights groups welcomed the decision by the ICC judges. The Afghanistan Independent Human Rights Commission, in a tweet on Thursday, said the ruling was an “important step for justice in Afghanistan’s long war.”
Amnesty International’s head of international justice, Solomon Sacco, said the ruling is “an historic moment where the International Criminal Court has reversed a terrible mistake and decided to stand by the victims of war crimes and crimes against humanity committed by all sides to the conflict in Afghanistan.”
In a statement, Mr. Sacco said the ICC represents “the first true hope of justice” for the victims of the Afghanistan war. “This is a decision that will be extremely popular with those fighting for justice and deeply unpopular with the parties to the conflict, including powerful states that attempted to bully the court and who eluded it for so long.”
Param-Preet Singh, associate international justice director at Human Rights Watch, said the ruling “reaffirms the court’s essential role for victims when all other doors to justice are closed.”
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