THE HAGUE, Netherlands – The International Criminal Court prosecutor asked for authorization Monday to investigate reported human rights abuses in Afghanistan, including allegations of rape and torture by U.S. military and the CIA, crimes against humanity by the Taliban and war crimes by Afghan security forces.
The request marks the first time that ICC Prosecutor Fatou Bensouda has targeted Americans for alleged war crimes. Bensouda said an investigation under the auspices of the international tribunal could break through what she called “near total impunity” in Afghanistan.
The prosecutor’s formal application to judges at the court also sets up a possible showdown with Washington. The United States is not a member state of the court, but its citizens can be charged with crimes committed in countries that are members.
The U.S. State Department said in a statement that it was reviewing Bensouda’s authorization request, but opposes the International Criminal Court’s involvement in Afghanistan.
“Our view is clear: an ICC investigation with respect to U.S personnel would be wholly unwarranted and unjustified,” the State Department said. “More broadly, our overall assessment is that commencement of an ICC investigation will not serve the interests of either peace or justice in Afghanistan.”
As well as alleged crimes by American troops in Afghanistan, Bensouda wants to investigate the activities of CIA operatives in secret detention facilities in Afghanistan and in Poland, Romania and Lithuania, which also are members of the court.
Established in 2002, the International Criminal Court is the world’s first permanent court set up to prosecute war crimes, crimes against humanity and genocide.
Bensouda said in a summary of her request that “information available provides a reasonable basis to believe” that U.S. military personnel and CIA operatives “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period.”
The prosecutor’s office said there was reason to believe that at least 54 detainees were abused by U.S. military personnel and at least 24 by CIA operatives.
The alleged abuse included waterboarding, which simulates drowning, and was allowed by the Bush administration after the Sept. 11 attacks. President Barack Obama banned such practices after taking office in 2009.
The 16-page summary said the people likely to be targeted in any future investigations “include persons who devised, authorized or bore oversight responsibility for the implementation by members of the U.S. armed forces and members of the CIA of the interrogation techniques that resulted in the alleged commission of crimes.”
A Pentagon spokesman, Air Force Lt. Col. Mike Andrews, said the Defense Department does not accept that an ICC investigation of U.S. personnel is warranted.
“The United States is deeply committed to complying with the law of war, and we have a robust national system of investigation and accountability that more than meets international standards,” Andrews said. “We do not believe that an ICC examination or investigation with respect to the actions of U.S. personnel in Afghanistan is warranted or appropriate.”
Bensouda’s application for investigation authority states that Afghan security forces also are suspected of involvement in “systematic patterns of torture and cruel treatment of conflict-related detainees in Afghan detention facilities, including acts of sexual violence,” Bensouda said
The Taliban and its allies are suspected of crimes against humanity and war crimes “as part of a widespread and systematic campaign of intimidation, targeted killings and abductions of civilians,” the detailed document stated. The victims – an estimated 17,700 during 2009-2016 – usually were perceived as supporting the government or opposing the Taliban rebels, according to the request.
In a statement, Richard Dicker, the international justice director at Human Rights Watch, welcomed the appeal for investigative authority.
“The request to pursue abuses by all sides, including those implicating U.S. personnel, reinforces the message that no one, no matter how powerful the government they serve, is beyond the law,” Dicker said.
The ICC is a court of last resort, intended to mete out justice to high-ranking suspects considered most responsible for grave crimes and only when national authorities cannot or will not take legal action.
The request for an investigation in Afghanistan said that while the U.S. maintains that thousands of investigations have been conducted for alleged detainee abuse, those probes appeared only to cover low-level suspects.
Bensouda’s filing said alleged abuses of detainees in CIA custody, “appear to have been committed with particular cruelty, involving the infliction of serious physical and psychological injury, over prolonged periods, and including acts committed in a manner calculated to offend cultural and religious values, and leaving victims deeply traumatized.”
Former U.S. President Bill Clinton signed the Rome treaty that established the court, but President George W. Bush renounced the signature, citing fears that Americans would be unfairly prosecuted for political reasons.
There is no set time frame for judges to rule on Bensouda’s request. Victims have until Jan. 31 next year to make their views about the possible investigation known to the ICC judges who will assess the request.
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