Court seeks investigation into possible war crimes in Afghanistan since 2003

U.S. troops stand guard during a graduation ceremony for Afghan troops, in Lashkargah, capital of southern Helmand province, Afghanistan, on July 24, 2016.


By JAMES MCAULEY AND PAMELA CONSTABLE | The Washington Post | Published: November 3, 2017

PARIS — The chief prosecutor of the International Criminal Court requested judicial authorization on Friday to begin a formal investigation into possible war crimes committed in Afghanistan, a probe that could potentially implicate American forces.

"For decades, the people of Afghanistan have endured the scourge of armed conflict," said Fatou Bensouda, a Gambian lawyer who has served as the ICC's chief prosecutor since 2012, in a statement. Her office was pushing to open an investigation because "there is a reasonable basis to believe that war crimes and crimes against humanity have been committed" in Afghanistan, she said.

Following jurisdiction parameters, Bensouda clarified that any resulting investigation would consider only those alleged war crimes committed on Afghan soil after May 1, 2003. Alleged crimes committed since July 1, 2002 in other states but that were "closely linked to the situation in Afghanistan" would also be considered, she said.

At present, the court's jurisdiction is confined to investigating crimes in the territories of member states only, although the U.N. Security Council can bring it into others. Afghanistan has been an ICC member state since 2002.

Rights activists applauded the announcement. "We welcome the ICC President's action convening a pre-trial chamber of judges to consider the Prosecutor's request to begin an investigation in Afghanistan," Human Rights Watch, a prominent advocacy group, said in a statement Friday.

"We look forward to reviewing the scope of the Prosecutor's filing when it is public. Having documented egregious crimes in Afghanistan that have gone unpunished over many years, we hope this step will open a path to justice for countless victims there."

In her brief, open-ended statement, Benousda did not expressly name U.S. or NATO forces as direct parties to be investigated. As she wrote: "the ultimate focus will be upon those most responsible for the most serious crimes allegedly committed in connection with the situation in Afghanistan."

"Afghan government efforts at accountability, especially concerning its own forces, have achieved little," Human Rights Watch said on Friday. "Both President Hamid Karzai and President Ashraf Ghani, with the backing of the United States and other governments, suppressed the release of the sole major effort to follow the Action Plan, the human rights commission's 800-page report mapping serious abuses from 1978 to 2001."

But there have been repeated accusations of abuses of prisoners held at the U.S.-run Bagram Air Base and elsewhere in Afghanistan. One human rights investigator at Human Rights Watch said, "We will wait and see what the scope is. But certainly both Afghan government forces and the Taliban have committed most of the major crimes in this period, and there has been no justice for the victims."

The best-documented case of severe prisoner abuse by U.S. service members in Afghanistan took place in 2002, when a 22-year-old Afghan taxi driver known as Dilawar was imprisoned and killed at Bagram Air Base, a U.S. military compound that was used as a detention and interrogation center. His story was first reported in the New York Times and then made into a documentary film.

According to those accounts, Dilawar was driving three passengers in a taxi in Khost Province when he was stopped by Afghan militiamen. The travelers were accused of staging a rocket attack on a U.S. rural base and turned over to American forces. Dilawar was sent to Bagram, where he died in custody five days later. One week before that, another detainee named Habibullah also died in detention at Bagram, reportedly due to beatings that caused a fatal blood clot.

The U.S. military said at the time that both detainees died of natural causes, but New York Times reporter Carlotta Gall tracked down an American coroner's report on Dilawar, with the cause of death marked "homicide." That report said he had died of a pulmonary embolism after his legs had been crushed.

A criminal investigation later found that the U.S. soldiers guarding him had repeatedly pummeled his legs while he was hooded and shackled. Several U.S soldiers were later prosecuted for assault and other charges in the case.

Established in 2002, the ICC was founded as a result of the Rome Statute and is the world's highest court for prosecuting human rights abuses, such as the war crimes Bensouda described.

The United States is among the few nations that never submitted to the court's authority, largely because previous presidential administrations feared that the supranational body, based in the Hague, could be used to target American military officials in investigations whose motivations may have been political.

Constable reported from Kabul.

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