ICC Chief Prosecutor Requests Judicial Authorization to Investigate Possible War Crimes in Afghanistan

On Friday, the International Criminal Court’s (ICC) chief prosecutor, Fatou Bensouda, announced that her office would be seeking authorization to launch an investigation into possible war crimes committed during the U.S. intervention in Afghanistan. Bensouda, a Gambian lawyer, said in a statement:

For decades, the people of Afghanistan have endured the scourge of armed conflict.  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.”  In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.

The ICC made public its preliminary examination into the situation in Afghanistan in 2007. In a 2016 report, the Office of the Prosecutor concluded that “there is a reasonable basis” to believe that the following crimes were committed:

1. Crimes against humanity and war crimes by the Taliban and the Haqqani Network;
2. Torture and “ill-treatment” by Afghan government forces, including national intelligence and law enforcement agencies;
3. War crimes of torture and “related ill-treatment” by U.S. military forces deployed in Afghanistan, as well as by the Central Intelligence Agency (CIA) in various detention facilities from 2003-2004, and possibly up to 2014.

Afghanistan ratified the Rome Statute, the treaty from which the ICC derives its jurisdiction, in February 2003. The Office argues that the ICC thus has jurisdiction over Rome Statute crimes committed in the country, including those committed by U.S. military and intelligence officials, from May 2003 onwards. The U.S. government, however, may protest the ICC’s claim to jurisdiction over Americans operating in Afghanistan by countering that the U.S. has never ratified the Rome Statute, and thus has not delegated to the international court criminal jurisdiction over U.S. nationals.

The ICC has faced fierce criticism from various governments, especially from African nations, for its perceived pro-Western bias. Since the court’s founding, nine out of the ten cases (the exception of Georgia) that have advanced to the full investigation stage have involved countries located in Africa. As far as individuals, the court has only investigated Africans leaders thus far.

The perception that the ICC is biased against Africans and in favor of the West has fueled a crisis of legitimacy regarding the international court, with several countries, among them Sudan, Gambia, South Africa, and Burundi, announcing their intent to withdraw from the Rome Statute in the near future. Just last week, Burundi became the first country to officially leave the court.

Bensouda’s decision to push ahead with the Afghanistan investigation, especially if her office delves into American military and intelligence officials’ possible culpability in the conflict, has the potential to revive non-Western countries’ faith in the ICC, which would in turn help bolster the court’s legitimacy.

Neither the CIA nor the Trump administration has commented on Bensouda’s decision thus far. If the investigation is approved by the judges, Bensouda may take several months to decide whether to bring charges, and if so, against whom.