4 novembre 2017

ACTU : The Prosecutor of ICC is seeking an investigation into alleged war crimes committed in Afghanistan

Catherine MAIA

On 3 November 2017, the Prosecutor for the International Criminal Court (ICC) said she's seeking approval of the Pre-Trial Chamber to open an investigation into allegations of war crimes in Afghanistan, in a case that could examine the role of US forces abroad.


Fatou Bensouda said in a statement that there is a "reasonable basis to believe" war crimes and crimes against humanity were committed and that all sides in the conflict would be examined.

The Prosecutor will focus on crimes allegedly committed since May 2003 in Afghanistan, and war crimes closely linked to the situation in that country committed on the territory of other states since July 2002, the date of entry into force of the Rome Statute.

In a report published last year, after a preliminary investigation that has lasted more than a decade, the ICC Prosecutor identified "potential cases" among three groups of alleged perpetrators: the Taliban and its affiliates, Afghan authorities and members of the US Armed Forces and Central Intelligence Agency (CIA).

There were preliminary grounds to believe US forces committed war crimes in Afghanistan and at CIA detention facilities elsewhere in 2003 and 2004. The alleged atrocities took place in all 34 of Afghanistan's provinces, with a smaller number of crimes alleged in Poland, Lithuania and Romania, where suspected members of the Taliban or al-Qaeda were held for questioning.

If authorized by the the Pre-Trial Chamber, the Prosecutor will investigate "in an independent, impartial and objective way, crimes within the court's jurisdiction allegedly committed by any party to the armed conflict", including intentional attacks against civilians, imprisonment and extra-judicial executions.

It would also represent the first time US nationals could be held criminally accountable for alleged war crimes committed in Afghanistan. The Prosecutor would be able to investigate the allegations despite the US not being a member of the ICC, because Afghanistan is a member, and the Court's jurisdiction covers crimes committed on any member state's territory, regardless of the nationality of the perpetrator.



ICC, 3 November 2017

Today, the Situation in the Islamic Republic of Afghanistan has been assigned to a Pre-Trial Chamber of the International Criminal Court ('ICC' or the 'Court'), following my decision to request authorisation to open an investigation into crimes alleged to have been committed in connection with the armed conflict in that State.

For decades, the people of Afghanistan have endured the scourge of armed conflict.  Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met.  In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.  It will be for the Judges of the Court's Pre-Trial Chamber, constituted by the Presidency, to decide whether I have satisfied them that the Statute's legal criteria to authorise opening an investigation are fulfilled.

Given the limited temporal scope of the Court's jurisdiction, my request for judicial authorisation will focus solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.  The Court has no jurisdiction respecting crimes alleged to have been committed before those cut-off dates.

Should the Pre-Trial Chamber grant my request, my Office will investigate, within its mandate and means, in an independent, impartial and objective way, crimes within the Court's jurisdiction allegedly committed by any party to the armed conflict. 

In accordance with the Office's policy and practice, the ultimate focus will be upon those most responsible for the most serious crimes allegedly committed in connection with the situation in Afghanistan.  We will always strive to do everything possible to ensure that our engagement in the exercise of our mandate is sensitive to the plight of victims in Afghanistan. 

In undertaking this work, if authorised by the Pre-Trial Chamber, my Office will continue to fully respect the principle of complementarity, taking into account any relevant genuine national proceedings, including those that may be undertaken even after an investigation is authorised, within the Rome Statute framework. In this regard, I note the initiatives undertaken by the Government of Afghanistan over the course of the past year in an effort to build capacity to meet its obligations under the Rome Statute.

Should the Pre-Trial Chamber grant my request to open an investigation, my Office and I count on the support and cooperation of the Government of Afghanistan, other States Parties and the international community as a whole to accomplish our objectives of ensuring accountability for the crimes committed and that the long-suffering victims of those crimes receive justice.



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