There is a clock ticking towards July 20. That is when the International Criminal Court for War Crimes goes into its summer recess. The question is will it be able in the six weeks that remain start proceedings against the US for alleged war crimes committed in Afghanistan?
The court originally held a preliminary investigation in 2006. It ruled that evidence of war crimes existed, but with fewer than 20 allegations it decided to proceed no further. But later that year fresh evidence came to light and it reopened the case.
Afghanistan joined the ICC in 2003. The US never did though President Bill Clinton tried hard to win approval.
At the moment the ICC has seven cases, beside the US one, that remain under on-going examination: Colombia, the UK in Iraq and Afghanistan, Palestine, Nigeria, Ukraine and Gabon.
On November 3rd last year the ICC’s chief prosecutor, Ms Fatou Bensouda requested that the judges of the pre-trial chamber authorize an investigation into alleged perpetrators of war crimes in Afghanistan and three other countries which had a “nexus” with the Afghan conflict: Poland, Romania and Lithuania. The CIA had so-called “Black Sites” in these countries where the CIA could torture at will without any legal supervision or responsibility. The Taliban were also included in the request. A UN Senate report said the allegations were true.
Since the alleged crimes - torture, cruel treatment and outrages upon personal dignity- were committed on Afghani soil the US cannot veto the proceedings. The European Union is a member of the ICC but, sadly, has not expressed support for the court in this case. The US could escape these accusations if it could prove to the court it had adequately investigated abuses by its own forces. President Barack Obama was against that, believing that the US should not look back, it should go forward. However, on his first day in office he abolished torture.
According to a New York Times article of November 3 last year, “Lawyers and international justice experts who have followed the court expressed little doubt that Ms Bensouda has evidence that could implicate Americans”.
The US has tried these tacks, feeling out the prosecutor’s office, but to no avail. There were too many pressures going the other way. African countries had been complaining, threatening to leave, because they were convinced the ICC only focused on Africa
If American soldiers and CIA personnel are found guilty the US will probably not accept the verdict. Under federal statute cooperation with the ICC in prosecuting Americans is prohibited. President George W. Bush was so seized with this that he sought immunity agreements from member states. He threatened to cut off aid. He blocked UN peacekeeping resolutions at the Security Council. He got Congress to pass a law authorizing the use of military force to rescue Americans from The Hague should one ever be detained by the court.
After a while this anti ICC campaign fizzled out. In fact Bush started to cooperate with the court. It began when the then secretary of state, Condoleezza Rice, travelled to the UN to cast a vote in favour of referring the near-genocidal situation in Darfur, Sudan, to the ICC. The Obama Administration voted for two further referrals. Bipartisan-supported legislation allowed the state department to offer multi-million dollar rewards for information helping to bring fugitives to ICC justice.
Washington has had plenty of time to see the Afghanistan prosecutions coming. They could, if the somewhat lethargic court gets a move on, be approved next month.
Stephen Pomper, a former White House adviser on ICC policy, has written that the US could argue that the Afghani crimes are not grave enough for ICC consideration compared with say Cambodia or Rwanda.
Another thought is that the ICC could be persuaded to conclude that the combination of the US military justice mechanisms and a department of justice investigation of the CIA would be sufficient to persuade the prosecutor to step back. But that hasn’t happened.
The US has tried these tacks, feeling out the prosecutor’s office, but to no avail. There were too many pressures going the other way. African countries had been complaining, threatening to leave, because they were convinced the ICC only focused on Africa. Human Rights organisations have built a convincing case that the US has not adequately investigated the allegations of torture. As for the “gravity” question it doesn’t stand up- it would look like nothing more than smokescreen. Moreover, ICC judges have signalled that they prefer to see the prosecutor err on the side of inclusion when seeking permission to proceed with an investigation.
Is there anything the US can do now? It can’t return to the Bush tactics of bullying member states to close down the investigation- they couldn’t. Another alternative would be to come out “swinging against the fundamental legitimacy of the court.
This is what Israel did when the prosecutor initiated her preliminary examination of the situation in Palestine three years ago”, says Stephen Pomper. The Israeli government later backed off.
Is the US prepared to stand alone, a de facto ally of the regimes it most detests, or will it submit to the court?
For 17 years, the writer had been a foreign affairs columnist and commentator for the International Herald Tribune/New York Times.