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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