The U.S. Is Blocking Investigations Into War Crimes in Afghanistan
The International Criminal Court headquarters in The Hague, The Netherlands.
(BRQ Network / Flickr)(CC BY 2.0)
This article was produced by Globetrotter, a project of the Independent
Media Institute.
On April 12, 2019, the International Criminal Court said that it would not
pursue a war crimes investigation against the U.S. military for its actions
in Afghanistan. A very thick file was closed in The Hague.
Almost a decade ago, on February 12, 2010, U.S. Special Operations Forces
arrived at the home of Haji Sharabuddin in Khataba (Paktia Province,
Afghanistan). The family of Sharabuddin was celebrating the birth of a
grandson. Inside the home were close family members (including a police
investigator and a government prosecutor) as well as the vice-chancellor of
Gardez University, Sayed Mohammed Mal. At 3 a.m., the U.S. forces attacked
the home, killing five members of the family including Sharabuddin's
son-Mohammed Dawood-who was the police investigator. After the killing, the
soldiers carried the bodies into the house and removed the bullets with a
knife. They did not want to leave evidence of their actions. They then
ransacked the home-including stealing money-and left. The U.S. military said
that those whom they killed were insurgents. Both the Afghan Independent
Human Rights Commission and the Criminal Investigations Department of the
Afghan Ministry of the Interior found this allegation to be false. A war
crime had been committed here.
But, thanks to the withdrawal of the International Criminal Court, this
crime-and hundreds of others-will neither be properly documented nor will
there be justice for the victims and survivors. Thousands of family members,
who know very well what happened in little villages like Khataba and
Nangalam, will have no recourse either to an admission of guilt or
punishment for the killers. The killing in Nangalam was by a U.S. helicopter
on March 1, 2011. The pilots fired on nine boys, killing them all. "My son
Wahidullah's head was missing," said Haji Bismillah. "I only recognized him
from his clothes." The U.S. apologized for the killing but did nothing other
than that.
One village and one town after another has families with stories of such
violent and senseless deaths. This U.S. war on Afghanistan, which has been
ongoing since 2001, has produced an unknown death count with unknown numbers
of war crimes (by the U.S. troops, by the Afghan armed forces and by the
Taliban). Afghanistan remains an open sore of crime and impunity.
The International Criminal Court
It was for good reason that the Afghan government of Hamid Karzai became a
member of the International Criminal Court in 2003. There was pressure on
Karzai from the U.S. government not to join the ICC, but he prevailed. It
was hardly a victory. The ICC came out of the Rome Statute, which was
drafted in 1998 and which came into force in 2002. The United States signed
the original treaty, but then refused to ratify it. Worse, the U.S. Congress
passed the American Service-Members' Protection Act of 2002 to discourage
any cooperation with the ICC if the behavior of U.S. soldiers came under
scrutiny. U.S. Senator Jesse Helms referred to the ICC as the International
Kangaroo Court. Even if Afghanistan became a member of the ICC, no one in
the U.S. establishment thought that this would have any consequences.
But prosecutors in the court had other ideas. In 2006, the ICC investigators
opened a "preliminary investigation" into war crimes in Afghanistan. They
were interested in war crimes committed by the U.S. forces, by Afghan forces
and by the Taliban. An investigator, a few years later, told me that they
had found "captivating evidence" of war crimes-mostly related to the torture
centers run by the Central Intelligence Agency and by U.S. military
intelligence. They sought more material evidence not only by interviewing
former prisoners but also through access-which they did not get-to U.S.
official documents.
In 2007, the Afghan parliament-a parliament of warlords-passed a law that
gave immunity to all for war crimes committed in the country. This was a
blanket-and shameful-immunity that was only in May 2017 amended to allow the
country to be in compliance with the Rome Statute.
In 2010, WikiLeaks provided some of this evidence in the Afghan war logs, in
whose 90,000 pages there was some-but not sufficient-documentation of
various operations run by the U.S. forces. This did not shape the ICC
investigation, which proceeded with deliberate intent with interviews and
with scrutiny of whatever documentation was available.
On November 20, 2017, with almost a decade of careful investigation behind
it, the ICC released a report with a bland title: "Situation in Afghanistan:
Summary of the Prosecutor's Request for authorization of an investigation
pursuant to article 15." The significant sentence of the brief report is the
following: "Finally, the information available provides a reasonable basis
to believe that members of the United States of America . armed forces and
members of the Central Intelligence Agency . committed acts of torture,
cruel treatment, outrages upon personal dignity, rape and sexual violence
against conflict-related detainees in Afghanistan and other locations,
principally in the 2003-2004 period." This did not mean that the crimes of
2010 and 2011 would not be investigated-only that the focus was on this
early period and would later expand to include the entire span of the
ongoing war.
The ICC's special prosecutor-Fatou Bensouda-asked the court to allow a full
investigation of war crimes in Afghanistan. She received a green light.
Trump's Men
A year later, on September 10, 2018, U.S. National Security Adviser John
Bolton said that if the ICC continues with its work on the U.S. war crimes
docket, the U.S. government would place sanctions on the ICC and even
criminally prosecute ICC officials in U.S. courts. This was not just for the
ICC investigation of U.S. war crimes in Afghanistan, but also if the ICC
persisted in its work on Israeli war crimes against the Palestinians.
Investigators at the ICC said, at that time, that gloom descended on their
department. The sense was that the investigation would not be allowed to
proceed. But, for the time being, there was no immediate attempt within the
ICC to shut down the investigation. The process continued, with Bensouda's
team building up the case against the United States-and others-for war
crimes in Afghanistan.
It is important to bear in mind that the evidence was in the plain light of
day. In 2005, the New York Times published a 2,000-page U.S. army
investigation on the killing of Habibullah and Dilawar at Bagram in December
2002. None of the soldiers charged with the murder of these two men were
convicted. All charges were dropped. But the evidence against them was clear
in the army report (please see Alex Gibney's Oscar-winning documentary,
"Taxi to the Dark Side," 2007).
The ICC's special prosecutor, Fatou Bensouda, who was in charge of this
file, visits the UN Security Council in New York City to deliver her report
to the member states of the UN. For this, Bensouda-like other foreign
nationals who work in the UN-must get a U.S. visa. On March 15 of this year,
U.S. Secretary of State Mike Pompeo said that the United States would deny a
visa to ICC personnel if they continue to investigate U.S. war crimes. A few
weeks later, on April 5, the United States revoked Bensouda's visa. This was
an act of immense hostility, little remarked in the press.
The pressure on the ICC from Trump's men rose. It would have taken
international outcry to prevent them from getting their way. The revocation
of Bensouda's visa was met with silence. The UN said nothing, nor did the
member states. It was this silence that had a chilling effect on the ICC. On
April 12, a three-judge panel rejected Bensouda's request for the
investigation. This pre-trial chamber comprised of Antoine Kesia-Mbe Mindua
of the Congo, Tomoko Akane of Japan and Rosario Salvatore Aitala of Italy.
They decided that an investigation into U.S. war crimes in Afghanistan
"would not serve the interests of justice."
So it goes.
Vijay Prashad / Independent Media Institute