The prosecutor of the International Criminal Court has said that she had a “reasonable basis to believe” that American soldiers committed war crimes in Afghanistan, including torture.
The international prosecutor has been considering whether to begin a full-fledged investigation into potential war crimes in Afghanistan for years. In Monday’s announcement, the prosecutor, Fatou Bensouda, signaled that a full investigation was likely.
Still, the prosecutor did not announce a final decision on an investigation, which would have to be approved by judges, and it is unlikely that the United States will cooperate.
The United States is not a party to the court, which was established to prosecute war crimes, crimes against humanity and genocide. But Afghanistan is a member of the court, so allegations of crimes committed in its territory, no matter the nationality of the perpetrators, are widely considered to be fair game.
The international court is under great pressure to show that it is unbiased in its targets for investigation. Almost all of its full-fledged investigations have focused on Africa, and in recent weeks three African nations — South Africa, Gambia and Burundi — have announced their intention to withdraw from the court.
Ms. Bensouda, in an annual report published Monday, said there was a “reasonable basis” for her to open investigations into “war crimes of torture and related ill-treatment, by U.S. military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency.” The focus, she said, would be mostly on any crimes that occurred in 2003 and 2004.
David Bosco, an Indiana University professor who follows the court, said the language of the report suggested that Ms. Bensouda was ready to seek its permission to proceed to an investigation in “a matter of days or weeks.”
Mr. Bosco said he was also struck by references in the report that signaled an interest to broaden her inquiry into prisoner abuse in secret detention facilities in other countries that belong to the court, including Poland and Romania.
The report also said she had found evidence of “torture and related ill treatment by Afghan government forces,” particularly by its intelligence agency and the police. War crimes and crimes against humanity committed by the Taliban and its affiliated networks would also be a target of investigation, the report said.
The investigation could also set up a potential showdown with President-elect Donald J. Trump, who has said he supports torture as a tool of counterterrorism.
The rules of the court set a very high bar for the prosecutor to begin a full investigation. That can often take years to meet, frustrating the court’s critics and champions alike. The prosecutor has to conclude, for instance, that the courts in individual nations are not taking adequate steps to hold perpetrators accountable.
The prosecutor’s report said that American soldiers and CIA officials had, while interrogating detainees in American-run facilities in Afghanistan, “resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape.”
Soldiers subjected at least 61 detainees to these practices, and CIA officers did so to at least 27 detainees, mostly between 2003 and 2004, the report found.
“These alleged crimes were not the abuses of a few isolated individuals,” the report said. “Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees.”
The report went on to note that American officials ordered that the practices be discontinued.
The prosecutor has come under criticism for not acting faster on the Afghanistan cases; she has blamed a lack of resources and cooperation.
The United States has assiduously sought to avoid scrutiny by the international court, arguing that its national authorities have investigated allegations of abuse. The prosecutor pointed out that American soldiers had not been prosecuted through the court-martial process.
As for the CIA officers, the Justice Department had carried out an inquiry into ill treatment of detainees. It decided not to prosecute anyone in connection to the death of a prisoner.
The report said it was still seeking clarity from the American authorities on the inquiries into the conduct of CIA officials before making a final decision on whether to open a full investigation. That decision would be made “imminently,” the prosecutor said.
The prosecutor’s annual report comes at a delicate moment for the court. Of its 10 current investigations, nine involve African politicians or warlords; the one exception is in Georgia.
The prosecutor’s 10 preliminary examinations — the prosecutor’s first look at a case before diving into a full-fledged investigation — are geographically broader, including inquiries in Ukraine, Afghanistan, Iraq and the Palestinian territories.
The New York Times