'Seminal Moment' as ICC Chief Prosecutor Seeks Probe of US War Crimes in Afghanistan

In a move that could implicate U.S. military forces and the C.I.A., the International Criminal Court’s chief prosecutor on Friday said she would be asking the Hague-based body to begin a probe of possible war crimes committed in Afghanistan.

“This is a seminal moment for the ICC,” said Solomon Sacco, head of international justice at Amnesty International. “Justice for victims of the Afghanistan conflict has taken far too long to arrive, but investigations like this one are the reason the Court was set up—to provide a last chance for justice when states parties have failed to deliver it.”

Prosecutor Fatou Bensouda says in her statement, “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,” noting 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 time frame for the probe, she said, “will focus solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.”

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(Though the U.S. is not a state party to the ICC, Afghanistan is, as are Lithuania, Poland, and Romania—home to U.S. “black sites”—giving the court the jurisdiction over crimes committed in those countries.)

Bensouda’s statement does not call out specific actors to be targeted; however, in her preliminary report to the court issued nearly one year ago, she said her

“This step toward opening an investigation is long overdue,” declared Param-Preet Singh, the associate director of Human Rights Watch’s International Justice Program.

“Whatever the court decides about the role of U.S. forces,” she continues, “the people in Afghanistan who have suffered enormously for decades deserve the world’s attention. More importantly, they deserve justice.”

If Bensouda gets the judicial authorization needed to go forward, she promises that her “office will investigate, within its mandate and means, in an independent, impartial, and objective way, crimes within the Court’s jurisdiction allegedly committed by any party to the armed conflict.”

Writing at Just Security, Harvard Law School professor Alex Whiting argues that the go-ahead from the judges is likely, but the investigation will be “difficult, if not nearly impossible,” given the cooperation needed by states to gather the necessary evidence. 

The probe, he added, could “last for years.”