US and UK could face Afghanistan war crimes investigation

'There is a reasonable basis to believe that war crimes and crimes against humanity have been committed'

The prosecutor of the International Criminal Court is to seek approval to open a formal investigation into allegations of war crimes in Afghanistan, said to have been committed by both the Taliban and US forces.

Fatou Bensouda, the Hague-based prosecutor of the International Criminal Court (ICC), has said she believed there is evidence to suggest war crimes and crimes against humanity were committed over a period from July 2002 to the present day. She said more than 10,000 civilians were said to have been killed from 2007 to 2011 alone.

She said there was evidence to suggest that, at a minimum, crimes against humanity were committed by the Taliban and its affiliated Haqqani Network, and that war crimes of torture were carried out by Afghan government forces, and by US military forces and the CIA.

She said there was also evidence that a number of civilians had been killed incidentally by other international forces that contributed to the International Security Assistance Force (ISAF) that could warrant further investigation. Thousands of British troops were among those deployed to Afghanistan following the US and UK-led invasion in October 2001.

“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,” she said in a statement.

“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.”

The ICC was established in 1998 as part of the Rome Statue and given the power to investigate genocide, crimes against humanity, and war crimes. Several major countries, including the United States and Russia, have made clear they do not intend to cooperate with the court and believe they have no legal obligations arising from any court decision.

In July, Reuters said any formal investigation into whether crimes were committed by US personnel in Afghanistan would hurt "already tenuous" relations between the ICC and the United States, which is not a member of the court and has in the past vehemently opposed it.

The court has previously been accused of pro-Western bias. Prior to January 2016, all nine situations the ICC had been investigating were in African countries.

It has subsequently established preliminary probes into events in Afghanistan, Colombia; Iraq, Palestine, Greece, and Cambodia and Ukraine.

Lawrence Douglas, a war crimes expert and Professor of Law at Amherst College, said if the ICC was to “demonstrate its legitimacy as a tool of international justice, it must function as something other than a legal dumping ground for cases involving African atrocities”.

“In this regard, Prosecutor Bensouda's announcement represents a welcome move toward demonstrating that the ICC can act in an even-handed fashion, holding all parties - the strong as well as the weak - responsible for grave human rights abuses,” he said. “That said, it is not clear the American and British actions rise to the level of egregiousness that should supply the standard for ICC cases.”

Fadi El Abdallah, an ICC spokesman, told The Independent the terms under which the court was established, meant it can investigate alleged offences perpetrated by citizens from countries which are not signatories of the Rome Statue, if the events were said to have taken place in a country that is.

The CIA declined to comment, referring inquiries to the Department of Justice. The DoJ and the British Foreign Office did not respond to inquiries. The British Ministry of Defence declined to comment.

A spokesperson for the US State Department, said: “Our view is clear: an ICC investigation with respect to US personnel would be wholly unwarranted and unjustified. More broadly, our overall assessment is that commencement of an ICC investigation will not serve the interests of either peace or justice in Afghanistan.

“Of course, the United States strongly condemns the deliberate killing of innocent civilians by the Taliban and other non-State armed groups, and we support accountability for these and other serious crimes in Afghanistan.”

Richard Dicker, international justice director at Human Rights Watch, said: "We welcome the ICC President's action convening a pretrial chamber of judges to consider the prosecutor’s request to begin an investigation in Afghanistan. We look forward to reviewing the scope of the prosecutor’s filing when it is public. Having documented egregious crimes in Afghanistan that have gone unpunished over many years, we hope this step will open a path to justice for countless victims there."

Amnesty International’s Head of International Justice Solomon Sacco said Ms Bensouda's announcement was a "seminal moment for the ICC".

He added: "Justice for victims of the Afghanistan conflict has taken far too long to arrive, but investigations like this one are the reason the court was set up - to provide a last chance for justice when states parties have failed to deliver it."