Taliban militants, who were arrested by Afghan security forces arrive during a presentation to the media in Jalalabad city, Afghanistan December 6, 2016. REUTERS/Parwiz
Taliban militants, who were arrested by Afghan security forces arrive during a presentation to the media in Jalalabad city, Afghanistan December 6, 2016. REUTERS/Parwiz

In its 2016 annual report, the International Criminal Court (ICC) has said there is “reasonable basis to believe that, at a minimum,” US forces subjected at least 61 persons in Afghanistan to “war crimes of torture and related ill-treatment” and another 27 at CIA detention facilities in Afghanistan, Poland, Romania and Lithuania to “torture, cruel treatment, outrages upon personal dignity and/or rape” in the 2003-04 period, although allegedly continuing in some cases until 2014.

According to the ICC’s Office of the Prosecutor (OTP), the “alleged crimes were not the abuses of a few isolated individuals” but a “part of approved interrogation techniques”; i.e. they were part of policy.

The OTP said it would decide “imminently” whether to pursue a full investigation in Afghanistan that could lead to war crimes charges. Should it do so, the decision would be historic. It would be the first time since the ICC came into being in 2002 that it would be initiating a formal investigation into US activities in Afghanistan.

Established by the Rome Statute, the ICC is the world’s first permanent court set up to prosecute individuals for genocide, war crimes, crimes against humanity and crimes of aggression. While its goals are worthy of praise, its achievements have been below par, earning it much criticism.

Africa only

For one, it has an abysmal conviction rate. Since the ICC’s inception, just two of the 10 people who faced trial have been convicted.

It has been a toothless court too, being able to do nothing to get Sudan’s President Omar al-Bashir arrested, for instance. Although he was indicted in 2008, Bashir remains in power and continues to travel freely throughout Africa.

Importantly, the ICC has been accused of bias against Africans. It is a fact that of the 36 people the ICC has indicted so far, all are Africans. Of its 10 current investigations, nine involve African politicians or warlords.

This has evoked an angry response from Africa. For instance, Sheriff Bojang, Gambia’s information minister, has pointed out that although “at least 30” Western countries “have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC,” “not a single Western war criminal has been indicted.” The ICC, Bojang alleged, is being used “for the persecution of Africans and especially their leaders,” adding that it “is in fact an International Caucasian Court for the persecution and humiliation of people of color, especially Africans.”

This has prompted South Africa, Gambia and Burundi to announce their intention to withdraw from the ICC. Others from the continent could follow.

Analysts have defended the ICC against the racial bias allegations, pointing out that most of the cases investigated by the ICC were in fact referred to it either by African governments or the UN Security Council. Yet, the ICC “does truly need to expand the geography of its docket,” they argue.

Investigating allegations related to Afghanistan could provide the ICC with the geographical expansion of focus that it so urgently needs. The OTP’s decision whether or not to open investigations into the US’ activities in Afghanistan will therefore be closely watched.

Americans in the dock?

In January, Georgia became the first non-African country to be referred to the OTP for investigation. Will Afghanistan be the second?

With regard to the conflict in Afghanistan, the ICC report names the US forces, the Afghan government and the Taliban as possible targets of investigation. There is evidence of “torture and related ill treatment by Afghan government forces,” particularly by its intelligence agency and the police, it says. Besides, war crimes and crimes against humanity committed by the Taliban and its affiliated networks such as the Haqqani Network could also be investigated.

Importantly, will Americans be investigated or put on trial?

Although the US is not a party to the ICC – President George Bush did not ratify the Rome Statute, which his predecessor, Bill Clinton, had signed earlier – Americans could still be prosecuted for alleged crimes in Afghanistan. Afghanistan joined the ICC in 2003, so all actions since then are subject to ICC jurisdiction.

While the ICC has taken a step forward, “it is still many steps away, from bringing Americans or Afghans accused of committing war crimes in Afghanistan to trial.”

Hitherto the US has sought to avoid scrutiny by claiming that it has carried out investigations, which “resulted in trial by courts-martial.” It has stressed this point in response to the ICC report too. “We believe that we have national systems of accountability that are more than sufficient,” the spokesperson of the US State Department said recently.

However, this argument may not impress the ICC. In the report, the OTP has pointed out that American soldiers had not been prosecuted through the court-martial process.

Given president-elect Donald Trump’s endorsement of the use of waterboarding and torture as interrogation techniques for terrorist suspects, it is unlikely that the Trump administration will co-operate with the ICC. Indeed, should the ICC open investigations into US activities in Afghanistan, a face-off between the US and the ICC is certain.

Testing times

The OTP’s annual report comes at a critical time for the court. The ICC’s credibility is on the line. It is under immense pressure to show that it is not prejudiced in choosing its targets for investigation. Importantly, it will have to convince skeptics that it will not hesitate to go after war criminals outside Africa.

The ICC will need to build solid evidence if it does decide to investigate the Afghan conflict. But the Afghan government may not be willing to provide investigators with access as it is working towards reconciliation with the Taliban. Immunity from prosecution for the Taliban will be an important part of the reconciliation deal. In which case, allowing the ICC to try Taliban or other Afghans for war crimes will not be possible.

Bringing war criminals in the Afghan conflict to justice could be the ICC’s biggest challenge so far.

Sudha Ramachandran

Sudha Ramachandran is an independent journalist/researcher based in Bengaluru, India who writes on South Asian political and security issues.