In 2014, the US Senate Intelligence Committee reported that the CIA had covered up its crimes by making false claims to the US department of justice. To this day, the US government has held no one accountable for the war crimes and serious abuses committed in Afghanistan.
The year 2001 marks the launch of the Operation Enduring Freedom (OEF); an operation in which The United States(US) went to war with the Taliban. The war started in Afghanistan and the aim was to put an end to both Taliban and Al Qaeda, which were using Afghanistan as the basis to plan and execute their terrorist activities.[1] The conflict was said to have had formally ended in 2014 but the US army troops remained in Afghanistan for the following years.[2] With the evacuation of all troops in 2021, the Taliban once again took over Afghanistan, establishing the Islamic Emirate of Afghanistan. During what was also known as the invasion of the United States, the world witnessed grave breaches of international law. It was not a hidden fact to people and organisations working in the field that the US army was to an extent responsible for the war crimes that had been committed. War crimes are acts which are carried out during the conduct of war. According to article 8(2) of the ICC Rome Statute, war crimes are any grave violation of the 1949 Geneva Convention (GC) and the customary International Humanitarian Law (IHL);[3] Including, among many others mentioned under this article, wilfully killing and causing great suffering or torturing to targeting civilian people and objects.[4]
There are certain situations in which the International Criminal Court (ICC) has jurisdiction over a person. Persons can only be prosecuted in the ICC if their national state is a member of the Rome Statute and has ratified their treaty.[5] In case of the US, in 2002 President George W. Bush notified United Nations secretary-general of his intention not to ratify the treaty and thus the US is not a member.[6] However, The ICC can still have jurisdiction over non-member citizens who have committed war crimes, crimes against humanity, genocide or crime of aggression in the territory of a member to the ICC.[7] As Afghanistan deposited its instrument of accession to the Rome statute in 2003 and delegated its authority to the ICC to prosecute such crimes, US citizens who commit one of the mentioned crimes in the territory of Afghanistan can be brought before the Court.[8]
In addition, the ICC is a court of last resort.[9] This means that in order for the ICC to carry out its jurisdiction against Crimes against humanity, war crimes, genocide and crime of aggression, there needs to be signs of unwillingness or inability of a country to prosecute these crimes.[10] States hold the responsibility under international law to investigate and prosecute those who are suspected for committing such crimes, Even though there have been investigations conducted by the US, no convictions were made. In 2009, an investigation into 101 cases of detainee abuse was opened by the US Department of Justice but at the end there were no charges against Central Intelligence Agency (CIA) officials who allegedly committed the illegality. In 2014, the US senate intelligence committee reported that the CIA had covered up its crimes by making false claims to the US department of justice.[11] Up to this day, the US government has held no one accountable for the war crimes and serious abuse committed in Afghanistan and such failure paved the way for the ICC to start an investigation.[12]
On the 14th of November 2016, The Office of the Prosecutor (OTP) of the ICC released the ‘Annual Report on Preliminary Examination Activities’ (2016 Report) which contained updates on the preliminary examination of the situation in Afghanistan.[13] Notably, in this report, the OTP determined that there is a reasonable basis to commence a Pre-Trial Chamber (PTC) authorization process to investigate the allegations of war crimes that have been committed by the US. The examination focused on the conflict that began in Afghanistan post September 11, 2001. In late 2001, “a United States-led coalition launched air strikes and ground operations in Afghanistan against the Taliban” and the continued hostilities after the new transitional Afghan government came to place. The report also examined the armed conflict that took place between “the Taliban and international military forces after the Taliban regained influence in 2003, intensified in 2005 and continued till December 2014.”[14]
The 2016 report found that members of the US Armed Forces and the CIA have allegedly committed war crimes in the course of interrogating detainees. The US armed forces and CIA members used techniques that amount to serious violations to Article 3 common to all GCs (CA 3) which covers “armed conflict not of international character”[15] This article also ensures the humane treatment of “Persons taking no active part in the hostilities including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause”.[16] It appears that the US armed forces have targeted and arrested civilians that have not directly participated in hostilities causing civilian injuries and deaths in the process including destruction of homes and property.[17] Such serious violations are considered war crimes, which are punishable under Article 8(2)(c) of the Rome Statute. The 2016 Report found reasonable basis to believe that members of the US armed forces and CIA have committed violations to Article 8(2)(c)(i) and (ii):
- “(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
- (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;”[18]
The 2016 report also found a reasonable basis to believe that US armed forces and CIA members have committed crimes under 8(2)(e)(vi) of the Rome Statute which relate to serious violations of the laws and customs of war covering non-international armed conflict. This article covers violations relating to:
“Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions”.[19]
Most of these abuses occurred in the period of 2003-2004 and they were not limited to a few isolated cases.[20] Rather, they appear “to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees”.[21] On the 4th of December 2017, the OTP released a more detailed and completed preliminary examination of the crimes committed in Afghanistan. This report provided that since 1 May 2003, the US Armed Forces have “committed war crime torture and cruel treatment (article 8(2)(c)(i)), outrages upon personal dignity (article 8(2)(c)(ii)) and rape and other forms of sexual violence (article 8(2)(e)(vi))”. Moreover, since 1 July 2002, CIA members have committed “war crimes of torture and cruel treatment (article 8(2)(c)(i)), outrages upon personal dignity (article 8(2)(c)(ii)), and rape and other forms of sexual violence (article 8(2)(e)(vi))”. All these crimes have been in the context of non-international armed conflict on the territory of Afghanistan and on the territory of other State Parties to the Rome Statute[22]. Particularly, the report indicated that there is reasonable basis to believe that 54 detained persons faced “torture, cruel treatment, outrages upon personal dignity, rape and/or sexual violence” from members of the US armed forces in the territory of Afghanistan. The examination also provides that 24 detained persons were subjected to the same crimes by members of the CIA in the territory of Afghanistan and in Poland, Romania and Lithuania which are State Parties to the Rome Statute.[23]
In addition to the above mentioned war crimes, on 12 April 2019, the PTC II on the Situation in the Islamic Republic of Afghanistan found several incidents where “individuals not participating in hostilities as well as non-military buildings, including of protected nature” have endured indiscriminate and intentional attacks by US and other international forces.[24] In other words, it has been evident in a number of reports that the US armed forces used indiscriminate attacks when conducting arrests through deadly air strikes and arms fire.[25] The attacks took place despite the absence of a military target, and caused injuries and deaths in the civilian population.[26] Such attacks can be considered as violation of the customary international humanitarian law, such as ‘principle of distinction’.[27] This principle is enshrined in Article 13(2) of Additional Protocol II to the Geneva Conventions which stipulates that “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”.[28] It is worth mentioning that a violation to this rule is considered a war crime and punishable under Article(8)(e)(i) of the Rome Statute which relates to the serious violation of “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” in the context of an armed conflict not of international character.[29]
With all that said, it appears that there is enough evidence to put forward an investigation before the ICC. The Rome Statute under article 13 has mentioned the ways according to which the court can exercise its jurisdiction. Based on this article the situation has to be either referred by a state party or by the United Nation’s Security Council. The last part of this article along with article 15 also indicates that the prosecutor can send a request to the PTC to open an investigation. This provision, also known as proprio motu, allows the prosecutor to take initiative if he believes there are reasonable grounds to start an investigation and to seek additional information from reliable sources such as the United Nations, states and organizations.
[1] Steve Bowman and Catherine Dale, ‘War in Afghanistan: Strategy, Military Operations, and Issues for Congress’ (2009) Congressional Research Service.
[2] Time, ‘U.S. Ends Its War in Afghanistan, The Time’(28 December 2014) <https://time.com/3648055/united-states-afghanistan-war-end/> last accessed 10 March 2022.
[3] The Rome Statute of the International Criminal Court is a treaty that established the International Criminal Court in 1998.
[4] UNGA, ‘Rome Statute of the International Criminal Court’, ISBN No. 92-9227-227-6 (17 July 1998), Art. 8(2) (See UNTS for complete citation) https://treaties.un.org/pages/AdvanceSearch.aspx?tab=UNTS&clang=_en
[5] The Human Right watch, ‘Q&A: The International Criminal Court and the United States’ (02 September 2020) <https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states> accessed 10 March 2022.
[6] Ibid
[7] Ibid
[8] International Criminal Court, ‘Afghanistan’ (07 November 2004) <https://asp.icc-cpi.int/en_menus/asp/states%20parties/asian%20states/Pages/afghanistan.aspx> accessed 09 March 2022.
[9]. The Human Right watch, ‘Q&A: The International Criminal Court and the United States’ (02 September 2020) <https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states> accessed 10 March 2022.
[10] Ibid
[11] Ibid
[12] Ibid.
[13] International Criminal Court, ‘Report on Preliminary Examination Activities (2016)’<https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf> accessed 06 March 2022.
[14] Ibid.
[15] Ibid.
[16] International Committee of the Red Cross (ICRC), Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287 art 3.
[17] Human Rights Watch, ‘“Enduring Freedom” Abuses by U.S. Forces in Afghanistan’ (2004) <https://www.hrw.org/report/2004/03/07/enduring-freedom/abuses-us-forces-afghanistan#_ftn10> accessed 08 March 2022.
[18] UNGA, ‘Rome Statute of the International Criminal Court’, ISBN No. 92-9227-227-6 (17 July 1998), Art. 8(2)(c). It is possible to use a shorter version, e.g: See above n.3 (Rome Statute, 1998) Article 8 (2)(c) etc.
[19] UNGA, ‘Rome Statute of the International Criminal Court’, ISBN No. 92-9227-227-6 (17 July 1998), Art. 8(2)(e)(vi). Ibid Article 8 etc
[20] International Criminal Court, ‘Report on Preliminary Examination Activities (2016)’<https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf> accessed 06 March 2022.
[21] Ibid.
[22] International Criminal Court, ‘Report on Preliminary Examination Activities (2017)’<https://www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf> accessed 06 March 2022.
[23] Ibid.
[24] Situation in The Islamic Republic of Afghanistan (Decision) ICC-02/17 (12 April 2019), 25.
[25] Human Rights Watch, ‘“Enduring Freedom” Abuses by U.S. Forces in Afghanistan’ (2004) <https://www.hrw.org/report/2004/03/07/enduring-freedom/abuses-us-forces-afghanistan#_ftn10> accessed 08 March 2022.
[26] Situation in The Islamic Republic of Afghanistan (Decision) ICC-02/17 (12 April 2019), 25.
[27] Customary IHL, ‘Rule 1. The Principle of Distinction between Civilians and Combatants’ <https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v1_rul_rule1> accessed 08 March 2022.
[28] International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609 art 13((2).
[29] UNGA, ‘Rome Statute of the International Criminal Court’, ISBN No. 92-9227-227-6 (17 July 1998), Art. 8(2)(e)(i).
Bibliography:
Bowman S and Dale C, ‘War in Afghanistan: Strategy, Military Operations, and Issues for Congress’ (2009) Congressional Research Service.
Customary IHL, ‘Rule 1. The Principle of Distinction between Civilians and Combatants’ <https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v1_rul_rule1> accessed 08 March 2022.
Human Rights Watch, ‘“Enduring Freedom” Abuses by U.S. Forces in Afghanistan’ (2004) <https://www.hrw.org/report/2004/03/07/enduring-freedom/abuses-us-forces-afghanistan#_ftn10> accessed 08 March 2022.
International Committee of the Red Cross (ICRC), Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.
International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609.
International Criminal Court, ‘Afghanistan’ (07 November 2004) <https://asp.icc-cpi.int/en_menus/asp/states%20parties/asian%20states/Pages/afghanistan.aspx> accessed 09 March 2022.
International Criminal Court, ‘Report on Preliminary Examination Activities (2016)’<https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf> accessed 06 March 2022.
International Criminal Court, ‘Report on Preliminary Examination Activities (2017)’<https://www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf> accessed 06 March 2022.
Situation in The Islamic Republic of Afghanistan (Decision) ICC-02/17 (12 April 2019).
The Human Right watch, ‘Q&A: The International Criminal Court and the United States’ (02 September 2020) <https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states> accessed 10 March 2022.
Time, ‘U.S. Ends Its War in Afghanistan, The Time’(28 December 2014) <https://time.com/3648055/united-states-afghanistan-war-end/> last accessed 10 March 2022.
UNGA, ‘Rome Statute of the International Criminal Court’, ISBN No. 92-9227-227-6 (17 July 1998).
Authors
Mahssan Afzali, Team Lead and Coordinator, RCIL & HR (mahssan.afzali@gmail.com)
Ghina Al Khatib, Research Assistant, RCIL & HR (ghina.a.alkhatib@gmail.com)
Amna Hasan, Research Assistant, RCIL & HR (hashmi.aamna@yahoo.com)