ICC judges say Afghanistan war crimes inquiry can proceed

Investigation to include US forces and the CIA as well as Taliban and Afghan military

After bad-tempered exchanges with the Trump White House that have gone on for almost a year, the International Criminal Court (ICC) has finally authorised an investigation into possible war crimes and crimes against humanity in Afghanistan whose range will include US forces and the CIA.

The decision comes less than a week after the US signed a peace deal with the Taliban aimed at ending 18 years of conflict during which 157,000 people have died. The agreement, if it holds, could see all US and Nato troops withdrawn from the country within 14 months.

The ICC ruling was handed down by a panel of appeal judges and overturns an adjudication last year that because its likelihood of success was “low”, such an investigation would not be “in the interests of justice” – a position widely condemned by human rights groups and civil society organisations.

Thursday's decision by the appeals chamber reopens the way for ICC prosecutor Fatou Bensouda to investigate the alleged mass killing of civilians by the Taliban, as well as allegations of torture by Afghan government forces and by the US, including the CIA, between May 2003 and 2014.

Even more controversially, the judges decided unanimously that the inquiry’s scope should also include allegations that CIA “black sites” were operated in Poland, Lithuania and Romania to which captives were forcibly transferred – or “rendered” – for so-called enhanced interrogation.

It is the first decision in the ICC's 15-year history to involve the United States – which is not a member of the court.

Reasonable grounds

The appeal judges signalled their support for Ms Bensouda by saying they agreed with her initial examination which had found reasonable grounds for believing that war crimes had been committed in Afghanistan and that the court had jurisdiction to investigate them.

The presiding judge, Piotr Hofmanski, said Ms Bensouda should proceed immediately and should not limit her work to preliminary findings because this would “erroneously inhibit the prosecution’s truth-seeking function”.

Irish barrister Fergal Gaynor and his colleague Nada Kiswanson, who together appeared for 82 Afghan victims in the proceedings before the appeals chamber, welcomed the decision as “a robust defence of the rule of law in the face of formidable political pressure”.

The latest ruling, they said, marked the start of an investigation, supported by the victims, that would be “long and inevitably fraught with logistical and political challenges”.

Because of this it was “imperative” that countries that were parties to the Rome Statute which set up the ICC should give the office of the prosecutor their full unflinching support.

In similar vein, the Coalition for the ICC – a global network that supports the court – warned the US government to respect the investigation and not interfere politically, while the International Federation for Human Rights said the probe would “restore confidence in the court’s integrity”.

However, the ruling is expected to infuriate the Trump administration, which revoked Ms Bensouda’s travel visa last March because of her determination to pursue the case, and warned that all other ICC staff would be treated similarly.

Peter Cluskey

Peter Cluskey

Peter Cluskey is a journalist and broadcaster based in The Hague, where he covers Dutch news and politics plus the work of organisations such as the International Criminal Court