The prosecutor’s office of the International Criminal Court is ready to initiate a full investigation of a range of possible war crimes and crimes against humanity in Afghanistan, including some by U.S. personnel, according to several knowledgeable sources.
The ICC move would mark the first time that a formal ICC investigation has scrutinized U.S. actions and sets up a possible collision with Washington.
Multiple sources have indicated that the chief prosecutor, Fatou Bensouda, will seek to initiate an investigation in the coming weeks, likely after the U.S. presidential election but before the end of the year. U.S. officials visited The Hague recently to discuss the potential investigation and to express concerns about its scope.
The prosecutor’s office has repeatedly called attention to alleged abuses of detainees by U.S. personnel between 2003 and 2005 that it believes have not been adequately addressed by the United States. In a report last year, it noted that “crimes were allegedly committed with particular cruelty and in a manner that debased the basic human dignity of the victims.” Bensouda may also want to probe further the attack by U.S. forces on a M?decins Sans Fronti?res facility in Kunduz that killed several dozen people.
Even once an investigation begins, it is not clear that the prosecutor would ever bring charges against Americans. Doing so would require significantly more evidence than the prosecutor’s office currently possesses. The ICC normally does not interview witnesses, take testimony, or gather forensic evidence during its preliminary examinations, and that work would be just the beginning.
In order to charge Americans with war crimes, Bensouda would likely also have to demonstrate a link between the conflict in Afghanistan and U.S. detention policies, which may not be easy; the United States reportedly brought several detainees to Afghanistan from other parts of the world. Perhaps most controversial, the prosecutor’s office would have to determine that the United States has failed to address allegations of torture through its own domestic prosecutions, investigations, and reviews.
Moreover, any indictments related to Afghanistan would be months if not years away. Because no ICC member has referred the situation to the court, Bensouda will need the approval of a three-judge panel before launching an investigation. ICC judges have approved all three previous investigative requests from the prosecutor (in Kenya, Cote d’Ivoire, and Georgia), but their review can take several months, and the judges might request additional information before authorizing an investigation.
