After
completing the preliminary examination into the situation in Afghanistan, the
Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, submitted
a Request for authorization from Pre-Trial Chamber III to begin a formal
investigation into the situation. The Request was submitted on November 20,
2017 and has been under review by the Chamber in the interim.
When
the ICC conducts a preliminary investigation on any country situation, the
Prosecutor assesses potential crimes under ICC jurisdiction—crimes against
humanity, war crimes, genocide, and aggression—conducted by any party
within the territory of the state in question. The Prosecutor
said she had found a “reasonable basis” to believe that crimes under ICC
jurisdiction had been committed by individuals within three distinct parties in
the situation, including:
- crimes against
humanity and/or war crimes by the Taliban, Haqqani Network, and affiliated
armed groups;
- war crimes by
members of the Afghan National Security Forces (ANSF), particularly
members of the National Directorate for Security (NDS) and the Afghan National
Police (ANP);
- and war crimes by members of United States of America (US) armed forces in Afghanistan and members of the Central Intelligence Agency (CIA) in “black site” detention facilities in Afghanistan and on other State Parties’ territories, specifically in Poland, Romania and Lithuania.
The Prosecutor asserts that the specified charges and
incidents presented in the Request meet both the ICC’s threshold for gravity
(severity) of the crimes and also complementarity (requirement for deference to
domestic courts), due to a lack of relevant national proceedings against
individuals viewed as most responsible for the gravest crimes. These senior
individuals with the most command and control over specific plans or policies
that bring about such crimes are the focus of ICC investigations and trials. This
means that senior level American officials in the Department of Defense or CIA
connected to war crimes named in her Request could potentially have arrest
warrants and charges against them if this formal investigation is approved—the
specific incidents and individuals of interest remain confidential at this
point.
The Rome Statute that created the ICC states that the Court
has jurisdiction over crimes committed either within the territory of a state
party by any persons, or by nationals of a State Party. Afghanistan is a State
Party, so the ICC has jurisdiction over crimes committed on its territory. The
CIA is accused of detaining alleged participants in or individuals with alleged
ties to armed groups involved in the conflict in Afghanistan and transferring
detainees from Afghanistan to black sites in Eastern Europe. The crimes in
question at CIA sites in Poland, Romania, and Lithuania are within ICC
jurisdiction because the activities took place within the territories of these
three states that ratified the Rome Statute. This framework also prevents the
ICC from investigating treatment of any Afghanistan-related detainees in
Guantanamo Bay, Cuba, because neither Cuba nor the United States is a State
Party to the ICC.
We anticipate that the Pre-Trial Chamber may announce its
determination in the coming months. Given the thoroughness of the Prosecutor’s
report and the strongly asserted reasonable basis for crimes relevant to an
investigation, we expect that the Pre-Trial Chamber will approve her request.
Written by Amanda Schmitt
