A Senate Intelligence Committee report in 2014 revealed that U.S. military and intelligence personnel employed tactics amounting to torture in covert overseas prisons, verifying what human rights groups had alleged for years. Yet not a single soul has faced criminal charges for these well-document violations. Recent moves by the International Criminal Court indicate that could all change, albeit not without a fight from the U.S. government.
ICC Prosecutor Fatou Bensouda said on November 3 that she was going to request authorization to launch a probe into possible war crimes related to the conflict in Afghanistan.
Ms. Bensouda did not call out the United States by name but the preliminary findings released last November concluded that U.S. military forces and the CIA may have tortured prisoners in secret detention centers inside Afghanistan since 2003 with some abuses committed in Poland, Romania, and Lithuania since 2002.
There was also significant evidence that war crimes were committed by Afghan forces and the Taliban and its affiliates.
On Wednesday, the American Civil Liberties Union applauded the move, saying it would set a precedent for holding American actors criminally accountable before an international court for torture committed overseas.
The U.S. government’s reaction to Ms. Bensouda’s announcement was swift and unequivocal. A State Department spokesperson told The Globe Post that an ICC probe of U.S. personnel would be wholly “unwarranted and unjustified.”
“More broadly, our overall assessment is that commencement of an ICC investigation will not serve the interests of either peace or justice in Afghanistan,” the State Department official said. “We have long believed and stated that justice is most effective when it is delivered at the local level.”
The official added that, while opposing a probe of U.S. transgressions, the United States supports accountability for the Taliban and other non-state actors responsible for the deliberate killing of innocent civilians and other serious crimes.
The United States has a long history of opposing international investigations, highlighted by the fact it is not one of the 123 signatories of the Rome Statute – the treaty that created the ICC in the first place.
Brian Terrell, a human rights activist with Voices for Creative Nonviolence, believes that U.S. opposition to the probe is not surprising but should not matter because it is time for justice to be served.
“At the end of WWII, some criticized the International Military Tribunal because the Axis countries were not signators,” Mr. Terrell told The Globe Post. “The U.S. is in a similar situation and the fact that potential U.S. defendants don’t recognize the ICC as legitimate is no more relevant than the fact that Nazi defendants did not recognize the Nuremberg courts.”
Mr. Terrell sees the launch of an ICC probe involving U.S. personnel as a great development that will give the court some credibility.
“The African Union in 2011 noted that the ICC’s active cases at that time all target crimes against humanity committed in the African states of Sudan, Democratic Republic of Congo, Central African Republic, Uganda and Kenya,” Mr. Terrell said. “No allegations of crimes by white people were being investigated.”
ACLU Human Rights Program Director Jamil Dakwar told The Globe Post that U.S. lack of cooperation could delay or even derail the entire process.
“The U.S. has made it clear through policy and even act of Congress that it won’t cooperate with ICC investigation targeting U.S. actors,” Mr. Dakwar said.
U.S. opposition to the ICC investigation is not justified in light of its failure to conduct an independent and comprehensive investigation and failure to prosecute architects and perpetrators of torture, he added.
Lack of U.S. cooperation, Mr. Dakwar continued, will significantly undermine the most important international justice mechanism that was created in the aftermath of the horrors of World War II, the Holocaust and Nuremberg Trials.
“But despite the myriad of hurdles and challenges a full investigation would send a clear signal to the Trump administration and other countries around the world that torture is categorically prohibited, including in times of war, and there will be consequences for authorizing and committing acts of torture,” Mr. Dakwar argued.
Amherst College Law Professor Lawrence Douglas, however, does not believe U.S. crimes rise to the level that would justify being included in the scope of an ICC probe.
“My view is that as a specialized instrument of international criminal law, the ICC should limit itself to cases of egregious violations of human rights. It appears that the Taliban have committed egregious abuses,” Mr. Douglas told The Globe Post. “Yet the ICC’s investigation is not limited to the Taliban, and it’s not clear that American abuses were egregious.”
The United States has legitimate concerns about international criminal law being politicized to settle scores with U.S. foreign policy, Mr. Douglas warned.
Yet Mr. Douglas also said, despite all of these reasonable objections, the United States should still cooperate with the probe.
“The U.S. was the architect of the Nuremberg trial and the prime mover behind the creation of the U.N. Yugoslavia Tribunal,” Mr. Douglas said. “The U.S. cannot simply support international criminal law when it is the complaining party.”
While the Obama administration adopted a policy of cooperation with the ICC, he added, the Trump administration appears to have little interest in advancing global human rights or contributing to the growth of international criminal law.
If the U.S. chooses not to cooperate with the ICC investigation in Afghanistan, and all signs indicate that it will not, it will have an impact on American standing in the world, the Amherst law professor suggested.
“To the rest of the world, this is yet another sad signal, along with the withdrawal from the Paris climate accord, of the present administration’s failure to exert anything like moral leadership in world affairs,” Mr. Douglas concluded.