Friday, 06 December, 2019


ICC prosecutor to investigate Afghanistan war crime probe

Hannah Rogers | 05 November, 2017, 16:37

Today, the Situation in the Islamic Republic of Afghanistan has been assigned to a Pre-Trial Chamber of the International Criminal Court ('ICC" or the "Court'), following my decision to request authorisation to open an investigation into crimes alleged to have been committed in connection with the armed conflict in that State.

The scope of such an investigation isn't clear, but it could have the potential to involve US troops. "More broadly, our overall assessment is that commencement of an ICC investigation will not serve the interests of either peace or justice in Afghanistan".

Over the past 12 years, Amnesty has repeatedly raised concerns about alleged crimes under global law and other serious violations and abuses of human rights law in Afghanistan, including unlawful killings, torture and arbitrary detention - committed by all parties to the conflict.

If authorized by the court's judges, prosecutors will investigate "in an independent, impartial and objective way, crimes within the court's jurisdiction allegedly committed by any party to the armed conflict". In this regard, I note the initiatives undertaken by the Government of Afghanistan over the course of the past year in an effort to build capacity to meet its obligations under the Rome Statute. Previous ICC cases have focused on defendants from African countries, a source of criticism for the global legal body.

For decades, the people of Afghanistan have endured the scourge of armed conflict.

The U.S. initially signed the Rome Statute under the Clinton administration but never ratified it, citing concerns that it would be used to prosecute U.S. citizens unfairly.

While the United States is not a member of the ICC, Bensouda has a mandate to investigate the behaviour of U.S. citizens as the alleged crimes took place in Afghanistan- a country which is a member of the ICC.

At the same time, "legal experts have said the chances of American service members being charged and sent to face justice at the ICC are remote", according to The Associated Press.

In a report a year ago, ICC prosecutors identified "potential cases" among three groups of alleged perpetrators: the Taliban and its affiliates, the Afghan authorities and members of the US armed forces and Central Intelligence Agency.

"Members of U.S. armed forces appear to have subjected at least 61 detained persons to torture", the prosecutors' office said in that report, adding that Central Intelligence Agency members also seemed to have tortured 27 detainees in secret detention facilities elsewhere, but not in Afghanistan. Approval would open up the possibility of U.S. nationals being held accountable for alleged war crimes. This includes attacks directed against civilians by the Taliban and its allies, as well as torture and other ill-treatment allegedly committed by the Afghan government forces and its USA and coalition allies. He added: "However, we have long believed and stated that justice is most effective when it is delivered at the local level".

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