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International court says its prosecutor can probe alleged US war crimes in Afghanistan

US soldiers watched the hillsides during a 2019 visit of the commander of US and NATO forces to Afghanistan.
US soldiers watched the hillsides during a 2019 visit of the commander of US and NATO forces to Afghanistan.Thomas Watkins/AFP via Getty Images/File 2019

LONDON — The International Criminal Court ruled on Thursday that its chief prosecutor could open an investigation into allegations of war crimes in Afghanistan, including any that may have been committed by Americans, a step that infuriated the Trump administration.

The ruling, by an appeals chamber of the court in The Hague, reversed a lower chamber’s decision that had halted an inquiry into the behavior of forces from the United States, which does not recognize the court’s jurisdiction. Washington revoked the visa of the court’s chief prosecutor, Fatou Bensouda, last year after she signaled her intentions to pursue the case.

The reversal of the lower chamber’s decision was widely viewed as a vindication of complaints by rights activists and legal scholars, who said the lower chamber had buckled to intimidation by the Trump administration and had raised doubts about the court’s independence.

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“The ICC Appeals Chamber’s decision to greenlight an investigation of brutal crimes in Afghanistan despite extreme pressure reaffirms the court’s essential role for victims when all other doors to justice are closed,” said Param-Preet Singh, the associate international justice director at Human Rights Watch.

The decision was the first by the ICC that could make US forces defendants in a war-crimes prosecution by the court. The ICC was established more than 15 years ago to seek justice for victims of war crimes, crimes against humanity, and genocide.

Secretary of State Mike Pompeo, speaking to reporters in Washington, called the ruling a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body.”

He reiterated that the United States was not a party to the treaty that created the ICC, and that “we will take all necessary measures to protect our citizens from this renegade, unlawful, so-called court.”

Having spent years collecting information on the Afghanistan War, Bensouda requested permission to open an investigation into claims of war crimes and crimes against humanity attributed to US military and intelligence personnel, the Taliban, and Afghan forces.

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The prosecutor has said that the court had enough information to prove US forces had “committed acts of torture, cruel treatment, outrages upon personal dignity, rape, and sexual violence” in Afghanistan in 2003 and 2004, and later in clandestine CIA facilities in Poland, Romania, and Lithuania.

The wide-ranging investigation would also look into allegations against the Afghan government forces, which are accused of torturing prisoners, as well as those against the Taliban and anti-government forces.

The United Nations’ mission in Afghanistan has documented the killings of more than 17,000 civilians by the Taliban since 2009, including nearly 7,000 targeted killings. Yet, in April, a UN report found that US and Afghan forces had killed more civilians in the first three months of 2019 than the Taliban did.

A pretrial chamber at the court rejected Bensouda’s request in April, arguing that a successful prosecution was unlikely because the United States and the Afghan government, which has set up its own investigation unit, were unlikely to cooperate. An investigation, it ruled at the time, “would not serve the interests of justice.”

Prosecutors appealed the ruling, and appeals judges at the court ruled on Thursday that the pretrial chamber had erred.

“The prosecutor is authorized to commence an investigation into alleged crimes committed on the territory of Afghanistan since May 1, 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan,” said Piotr Hofmanski, the presiding judge of the appeals panel.

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The ruling came days after the United States signed a deal with the Taliban to withdraw US troops from Afghanistan after nearly two decades of conflict.

US officials have long sought to pressure the court not to prosecute US citizens, arguing that doing so would threaten American sovereignty and national security interests. In 2018, John Bolton, then the national security adviser, denounced the court as “illegitimate.”

It remained unclear to be seen how prosecutors would further investigate the allegations without the cooperation of the Trump administration or the Afghan government. Afghan officials have objected to the inquiry, arguing that they had set up their own special unit to look into possible war crimes.

Although the United States is not a state party to the Rome Statute, the treaty that created the court, US citizens can be subject to its jurisdiction if the court is investigating crimes in countries that have joined. Those countries include Afghanistan, Lithuania, Poland, and Romania.

Katherine Gallagher, a senior staff attorney at the Center for Constitutional Rights, a New York-based legal advocacy group, said the crimes had been documented for the prosecutors to move quickly. “In the case of US torture, who bears responsibility has been well-documented,” said Gallagher, who attended the overruling announcement at The Hague on Thursday.

“Hopefully this will move very quickly,” she added.

For some Afghan civilians, the ruling brought hope that a court with international jurisdiction could bring them justice.

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Masih Ur-Rahman Mubarez, whose wife, seven children and four other relatives were killed in a US airstrike targeting members of the Taliban in Wardak province in September, said he felt some relief after knocking “every single door for justice.”

“I will never find peace of mind,” Mubarez said. “But if the ICC punishes Americans who killed my children, I will be happy.”