Fatou Bensouda, prosecutor of the International Criminal Court (ICC), announced today that she will ask the court’s judges to open an investigation into possible war crimes and crimes against humanity in Afghanistan committed since May 1, 2003, when Afghanistan became a member of the court. She also identified the ICC’s jurisdiction over possible war crimes “closely linked to the situation in Afghanistan” on the territory of other ICC member countries.
Her announcement raises the curtain on the next step: she must now formally support her claim that there are ICC crimes – war crimes, crimes against humanity or genocide – in Afghanistan that deserve the court’s attention. A panel of three judges then must agree before she can open an investigation.
This step toward opening an investigation is long overdue. More than 10 years ago, the court began its preliminary analysis in Afghanistan – the phase to determine whether there are possible ICC crimes and if the court should act. In the meantime, there have been countless summary executions, forced disappearances, acts of torture, and suicide attacks on civilians in the country. These abuses have largely gone unchecked.
In her last report on Afghanistan, Bensouda identified three broad categories of actors that could be held responsible: the Taliban, Afghan government authorities, and United States forces. Under the Rome Statute that created the ICC, the court has jurisdiction over crimes committed on the territory of a member country – even abuses committed by people who are citizens of countries, like the US, that are not ICC members.
The possibility that the ICC investigation may include abuses by US soldiers and Central Intelligence Agency officials drives home the point that with this court, nationals from more powerful countries do not necessarily stand outside the law.
Whatever the court decides about the role of US forces, the people in Afghanistan who have suffered enormously for decades deserve the world’s attention. More importantly, they deserve justice.