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US forces likely committed war crimes in Afghanistan: ICC

By Mansoor Faizy-KABUL: The Prosecutor of the International Criminal Court (ICC) said that a preliminary investigation has indicated that he United States military service members and the Central Intelligence Agency (CIA) might have committed war crimes in Afghanistan.

Fatou Bensouda, the ICC prosecutor, said that a full investigation into the potential war crimes committed by the US armed forces and CIA in Afghanistan is likely as the ICC had a reasonable basis.

Bensouda said that she had a “reasonable basis to believe” that war crimes had been committed in Afghanistan.

The ICC in its preliminary report said that as a result of its examination, it has identified, at a minimum, the following crimes: “a. Crimes against humanity and war crimes by the Taliban and their affiliated Haqqani Network; b. War crimes of torture and related ill-treatment by Afghan government forces, in particular the intelligence agency (National Directorate for Security), and the Afghan National Police; and c. War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency.”

According to the report, the above crimes are alleged to have been committed on the territory of Afghanistan, in all 34 provinces of the war-hit country. Southern Kandahar and Helmand provinces appear to be the most affected provinces, with a high degree of conflict-related violence throughout the relevant time period. “In addition, a limited number of alleged crimes associated with the Afghan armed conflict are alleged to have been committed on the territories of Poland, Lithuania and Romania, which are parties to the Statute. This is because individuals captured in the context of the armed conflict in Afghanistan, such as presumed members of the Taliban or Al Qaeda, were allegedly transferred to detention centers located in those countries,” the report said.

Crimes are alleged to have been committed throughout the entire time period during which the Court may exercise its jurisdiction, i.e., since May 1, 2003, and continuing to the present day. Since the information available provides a reasonable basis to believe that at least some crimes within the Court’s jurisdiction were committed on the territory of Poland prior to May 1, 2003, the situation for which the Prosecutor could potentially seek authorization to investigate would accordingly encompass not only alleged crimes committed in Afghanistan since May 1, 2003, but also other alleged crimes that are sufficiently linked to the situation in Afghanistan and that were committed outside of Afghanistan since July 1, 2002.

Afghanistan deposited its instrument of ratification to the Rome Statute on February 10, 2003. The ICC therefore has jurisdiction over Rome Statute crimes committed on the territory of Afghanistan or by its nationals from May, 2003, onwards. In relation to the crimes in the context of and that were associated with the armed conflict in Afghanistan that were allegedly committed on the territory of other States Parties, the Statute entered into force for Poland and Romania on 1 July 2002, and for Lithuania on 1 August 2003.

“The Office has also examined allegations regarding civilian casualties caused by international military forces operating in Afghanistan. Since 2009, when UNAMA began to record such casualties systematically, UNAMA has documented approximately 1,600 civilian deaths,” the report said.

According to the ICC a large number of incidents attributed to the international forces, the prosecutor’s office has determined that, although these operations resulted in incidental loss of civilian life and harm to civilians, in most incidents the information available does not provide a reasonable basis to believe that the military forces intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack. “The Office also identified a few other incidents attributed to international forces where owing to paucity of the information available at this stage, it was unable to reach a determination whether there is a reasonable basis to believe crimes within the jurisdiction of the Court have occurred. In particular, an in-depth assessment would require evidence on the context of the attacks to determine whether civilian deaths or injuries amounted to war crimes within the jurisdiction of the Court,” the report said.

These and similar allegations would fall within the scope of the situation and could be investigated further, should the Pre-Trial Chamber in due course authorize an investigation and depending on the results of the application of the case selection and prioritization policy of the Office.

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