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The prosecutor at the International Criminal Court has requested permission to investigate US military personnel and members of the CIA over allegations of war crimes in Afghanistan.
Fatou Bensouda also asked for authorisation from the ICC’s judiciary to investigate alleged crimes against humanity and war crimes by the Taliban and militant Haqqani network and war crimes by Afghan national security forces.
Ms Bensouda said on Monday that the proposed investigation would focus on alleged crimes committed on Afghan territory from May 2003 and at secret detention facilities in other countries since July 2002.
Following the attacks of September 11 2001, which led to the invasions of Afghanistan and Iraq, the CIA began using secret prisons, known as “black sites”, to interrogate terror suspects. These were located around the world, from Thailand to Poland, as well as in Afghanistan itself.
In a statement on the ICC website, Ms Bensouda said the prosecutor’s office believed an investigation was required owing to “the gravity of the acts committed . . . and the absence of relevant national proceedings against those who appear to be most responsible for the most serious crimes within this situation”.
The move by Ms Bensouda is likely to provoke anger in Washington. The US has not signed up to the ICC but its nationals can be charged with crimes committed in countries that are members.
The alleged crimes carried out by US personnel were said to have taken place “principally in the 2003-04 period, although allegedly continuing in some cases until 2014”. They included claims of “the use of sexual violence, severe isolation, suffocation by water or waterboarding, hooding under special conditions, threats of torture and the use of dogs to induce fear”, said the prosecutor in the full submission.
On the Taliban, the ICC said that it and its affiliates had “deliberately killed civilians perceived to support the Afghan government and/or civilians perceived to support foreign entities, or civilians perceived to oppose Taliban rule and ideology”. The same groups had killed approximately 17,700 civilians since 2009, it added.
In addition, “multiple sources have reported on the prevalence of torture in Afghan government detention facilities,” said the prosecutor’s office.
The US state department said it was reviewing the request but that an ICC investigation into US personnel “would be wholly unwarranted and unjustified”. Any investigation would “not serve the interests of either peace or justice in Afghanistan,” Ms Bensouda said, adding that while the US condemned killings by the Taliban, justice was best served at the local level.
“We commend the significant steps [by Afghan] President [Ashraf] Ghani . . . to reform the justice sector, to promote the rule of law, and to hold accountable those responsible for serious crimes in the country,” she said.
The Pentagon and CIA did not comment on Ms Bensouda’s move.
Param Preet Singh, an associate director at Human Rights Watch, said there was a widespread failure to investigate such crimes dating back more than a decade. “Extensive criminality has gone unaddressed for a very long time,” she said, citing the failure of jurisdictions in Afghanistan and the US as well as the countries that hosted the CIA black sites.
“The ICC is a court of last resort — it’s only going to step in when national authorities fail to do so,” Ms Singh said.
She also said that authorisation, were it granted, would represent a win for the ICC, which has faced accusations of bias by focusing almost exclusively on African countries. It would mark only the second investigation outside Africa in the court’s 15-year history. “It shows that if you commit horrific atrocities you can’t hide behind your nationality,” Ms Singh said.
Those who consider themselves victims of the alleged crimes have until January 31 2018 to make representations to the ICC’s pre-trial chamber.
Set up in 2002, the ICC is the world’s first permanent court set up to prosecute war crimes, crimes against humanity and genocide. More than 120 countries are members but leading nations such as Russia and China, along with the US, have not signed up.