The International Criminal Court’s Office of the Prosecutor has said it will “imminently” be taking a decision on whether to request authorisation from judges to commence an investigation into war crimes in Afghanistan. The Taleban could be investigated, among other offences, for murder and intentionally attacking civilians, while Afghan government forces, and the US military and CIA could be investigated for torturing security detainees. As Kate Clark and Ehsan Qaane report, this next step towards US citizens possibly being called to trial in The Hague has arisen just as Donald Trump, a man who believes in torture, has been voted into the White House.
Aftermath of a Taleban-claimed war crime: an attack on a civilian target, the German Consulate in Mazar-e-Sharif, on 10 November 2016. A vehicle filled with explosives was detonated, killing four civilians and injured more than 100 others. Photo: Tolo
The ICC’s Office of the Prosecutor (OTP) released its 2016 Preliminary Examination Report on Afghanistan (released annually) on 14 November 2016. The report says that the OTP had determined there was a reasonable basis to believe that, at a minimum, the following crimes within the Court’s jurisdiction had occurred:
- Crimes against humanity and war crimes by the Taliban and their affiliated Haqqani Network;
- 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;
- 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, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.
The Preliminary Examination also said that thresholds of admissibility had been reached, ie the alleged crimes are under ICC jurisdiction, are sufficiently grave, are not being addressed by domestic or other legal bodies (although this is “subject to further information that could be provided by the relevant national authorities in the course of the preliminary examination or any subsequent investigation”) and there are “no substantial reasons to believe that the opening of an investigation would not be in the interests of justice.”
The Taleban
There is a reasonable basis, the OTP said, to believe that the Taleban and the Haqqani network have committed war crimes (murder; intentionally directing attacks against the civilian population, humanitarian personnel and protected objects; conscripting children; and killing or wounding treacherously a combatant adversary – all of which, it said, “were committed on a large scale and as part of a plan or policy”) and crimes against humanity (murder; imprisonment or other severe deprivation of physical liberty and persecution against any identifiable group or collectivity on political grounds and on gender grounds, all “allegedly committed as part of a widespread and/or systematic attack…” – for full quote, see paragraphs 206 and 207 of the report.)
In terms of admissibility, the Taleban and Haqqani network’s crimes passed the gravity threshold. As to whether domestic courts are dealing with suspected war criminals, the OTP pointed to the almost complete lack of any investigation or trial of alleged war criminals in Afghanistan (1) and to the 2009 Amnesty Law which provides amnesty to everyone who committed war crimes, including those who, in the future, reconcile with the Afghan government (see also this AAN report). It was noticeable, in this respect, that the government recently also granted immunity to Gulbuddin Hekmatyar and his armed men in the context of the peace agreement signed with Hezb-e Islami on 29 September 2016. (2) Amnesty for war crimes in domestic legislation can be interpreted as unwillingness by the state to prosecute.
The NDS and Afghan police
Multiple sources, the OTP said, including the Afghanistan Independent Human Rights Commission (AIHRC), UNAMA and a presidential fact-finding commission in 2013 have reported on the prevalence of torture in Afghan government detention facilities. The OTP estimates 35 to 50 per cent of conflict-related detainees “may be subjected to torture” and says there is a “state of total impunity.”
There is a reasonable basis to believe, the OTP said, that Afghan authorities have committed the war crimes of torture and cruel treatment; outrages upon personal dignity pursuant to article; and (this is new in the OTP’s reports) sexual violence. Naming the Afghan intelligence agency the National Directorate of Security (NDS), the Afghan National Police, Afghan National Army, Afghan Border Police and the Afghan Local Police (ALP), it says available information suggests the alleged crimes were committed on a “large scale.” Although there is no indication that they were committed “as part of any plans or policies at the national level,” in some cases, it said, there were plans or policies at the level of facility, district or province.
The US military and CIA
The information available, says the OTP, provides a reasonable basis to believe that during interrogations of security detainees and in conduct supporting those interrogations, members of the US armed forces and the CIA:
… resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape… Specifically:
Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.
Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.
Crucially, the OTP says these “alleged crimes were not the abuses of a few isolated individuals,” but rather were part of a policy:
The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan.
It notes their use ended when the authorities decided to stop using them, indicating the alleged crimes were ordered, rather than being the work of random individuals.
Unlike the 2015 Preliminary Examination report, for both US and Afghan forces, rape is mentioned in the sections on the use of torture in the interrogation of security detainees.
As to civilian casualties caused by the international military, something which many survivors and the families of those killed hoped would be taken up by the ICC, this now looks unlikely. Civilians can be lawfully killed during conflict. (3) As the OTP said, “[A]lthough 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.”
There were a few incidents where lack of information meant the OTP could not determine whether harm done to civilians amounted to war crimes. If the judges (the ICC’s Pre-Trial Chamber) authorised an investigation, it said, and depending on whether this matter passed selection and prioritisation criteria, they could be looked into further. However, it is unclear if even these incidents of civilian casualties, if investigated, would be considered potential war crimes or whether they would meet the gravity threshold of admissibility.
The evidence
The OTP does not go into the evidence, so the following is very much the authors’ initial take on possible investigations.
The Taleban regularly and publically claim to have committed what are, in effect, war crimes, as in a recent example, the deliberate attack on the German Consulate (a civilian target) in Mazar-e Sharif last week. (The attack killed four and injured more than one hundred civilians living nearby.) UNAMA routinely reports such incidents in its Protection of Civilians reports. In the first six months of this year, for example, it found the Taleban had claimed 51 attacks which deliberately targeted civilians or civilian locations. AAN has itself investigated such incidents claimed by the Taleban (see for example, here and here). Both in their codes of conduct (layhas) and public declarations, the Taleban allow or have ordered the commission of war crimes; these include the targeting of Afghan civilians working with the government and foreign organisations, justice sector workers and journalists with certain media organisations (see here and here) and in the early days of the insurgency also schools, teachers and NGO workers.(4)
There have been multiple reports on the use of torture by NDS, in particular, but also by the Afghan police and ALP (see here and here). The Afghan government has acknowledged the use of torture in government facilities, but as UNAMA has reported, has failed to take criminal or even administrative action against torturers, creating effective impunity. AAN has also reported regularly on this issue (dispatches also contain links to the major investigations by UNAMA and AIHRC: see for instance here, here and here). (5)
In 2001/2002, the US administration of George Bush decided, in its handling of ‘war on terror’ detainees, to forgo the Geneva Conventions, including common article 3 which, among other things, bans torture and “degrading and humiliating treatment.” The president claimed the ‘enhanced interrogation techniques’ he authorised did not amount to torture, although the OTP clearly believes otherwise.
The US’s use of torture against security detainees was systemic (although not every detainee was tortured) and there is a wealth of documentation about how decisions were taken and the misgivings of many in the military and the CIA about its use. The torture has been detailed by human rights organisations; the US government (see a list of investigations up to 2008 put together by the International Center for Transitional Justice); Congress, looking at both the military and the
CIA; journalists (for example, here and here) and former detainees. Methods used included being deprived of sleep for days, waterboarding, food deprivation, being continuously shackled, being forced to kneel or stand in painful ‘stress positions’ for extended periods, being beaten, kicked, soaked in cold water, being stripped and sexually humiliated, and being forced to listen to music loud enough to deafen for hours at a time.
Media headlines (for example, here and here) about the ICC report have mainly focussed on the possibility of Americans being in the dock for war crimes. The US is not a member of the ICC. Bill Clinton signed the Rome treaty that established the court in December 2000, but George W Bush renounced the signature in May 2002 saying he feared Americans would be unfairly prosecuted for political reasons. However, Americans could still be prosecuted for alleged crimes committed in Afghanistan because it is a member. The Rome Treaty came into force in Afghanistan in May 2003 and only crimes committed after then are admissible (some of the most egregious and best-documented US torture cases, including three deaths in custody took place before then). However, there could be investigations into earlier alleged of torture by the CIA of detainees in Poland, Romania and Lithuania, given, the OTP said, there was a nexus to the Afghanistan conflict. The Rome Statue entered into force in Poland and Romania on 1 July 2002 and Lithuania on 1 August 2003.
Trump-era practices?
The interrogation practices which could now be investigated by the ICC as incidents of torture were eventually outlawed in the US. In 2005, Congress banned the techniques which Bush had authorised and, in 2009, Obama passed an executive order restricting interrogators to using only techniques authorised in the Army Field Manual; that order was codified into law by the Senate in 2015. Obama called waterboarding torture and his attorney general, Eric H Holder, said the country was owed “a reckoning” for torture carried out after the September 11th attacks. However, in the end, Obama decided not to conduct a broad criminal investigation into Bush-era officials saying, “We need to look forward, as opposed to looking backward.”
However, the new US president-elect is again officially championing those techniques. Like Bush, Trump believes torture ‘works’. As AAN has reported, he has praised waterboarding, saying, “I like it a lot. I don’t think it’s tough enough.” Even if it did not work, he said, he would authorise it because “they deserve it anyway for what they do to us.”
There may be other supporters of torture in the new Trump administration. Two men being suggested as possible secretaries of state are Newt Gingrich, former Senate speaker, who said of waterboarding, “under the normal rules internationally it’s not torture” and John Bolton, former Bush-era ambassador to the United Nations, who criticised Obama for saying the US state had used torture as it would be “aiding an effort to establish liability for the top political leaders up to and including President Bush and [former] Secretary [of Defense Donald] Rumsfeld.”
The name of Jose Rodrigues has also come up as a future director of the CIA. Just after the 9/11 attacks, he was appointed chief of staff of the CIA’s Counterterrorism Centre and was later promoted to director of the CIA’s National Clandestine Service. He was a key player in creating the CIA’s torture and rendition programme and in trying to cover up it up; in November 2010, after photographs showing detainees being abused at the Abu Ghraib prison in Iraq were published, he ordered the destruction of video tapes showing detainees being water-boarded. Rodrigues could have been charged with misleading investigators or obstructing justice, but in 2010, the Department of Justice decided not to put him on trial.
Like Trump, Rodrigues has spoken of the need to go beyond the methods of torture signed off by Bush. “Enhanced interrogation techniques are well known to the enemy and we would have to come up with something else,” he told The Daily Beast, although he declined to tell the paper what that might entail. As anti-torture laws were passed during the Obama years, practicing torture again may not be as easy as it looks, although see here and here for legal analysis of what the new president’s options might be.
Trump has also said he wants to expand the ‘war on terror’ detention camp at Guantánamo Bay (with five remaining Afghan inmates, along with 55 others). Such a move would increase the potential for abuses to take place as inmates do not enjoy the same legal protections as those on mainland America and it is far more difficult for lawyers and journalists to scrutinise.
Conclusion
The ICC has been under fire for ‘only investigating Africans’ (that was the reason, said three countries, South Africa, Burundi and Gambia, why they were withdrawing from the ICC earlier this month. (6) In January of this year, Georgia became the first non-African country that the OTP received Pre-trial Chamber authorisation for to investigate – in this case, alleged war crimes committed during the 2008 Russian-Georgian conflict over South Ossetia. Afghanistan could be the second. Even if it does, however, building cases against specific individuals, especially in a war zone, will be difficult. With its new report, the ICC may be one step closer, but it is still many steps away, from bringing Americans or Afghans accused of committing war crimes in Afghanistan to trial.
(1) The OTP mentions two possible exceptions: the pre-Amnesty Law conviction of Abdullah Shah, an Ettehad-e Islami commander for murders committed during the civil war in Kabul and “reportedly two senior members of the Haqqani Network… prosecuted and convicted by a national primary court in August 2016 for an unknown alleged conduct.”
(2) The OTP mentions Hezb-e Islami only in the context of the list of groups fighting the Afghan government.
(3) Civilians can lawfully be killed as ‘collateral damage’ during conflict. However, they cannot be targeted, combatants must take precautions to avoid causing civilian harm and if civilian harm is expected from an attack on a military objective, this must be proportional to the military gain.
(4) In the Taleban’s 2006 code of conduct, teaching in government schools was deemed illegal and punishments were harsh. Teachers were to be warned and if necessary beaten: “…if a teacher or mullah continues to instruct contrary to the principles of Islam, the district commander or group leader must kill him.” Education was allowed, but only in a mosque or similar institution, using jihad or Emirate-era textbooks and by someone with religious training. Schools were to be closed and if necessary burned. Any contract with an NGO, in exchange for money or materials, had to be authorised at the highest level, by the leadership shura. The 2006 code of conduct described NGOs as “tools of the infidels.” These instructions and descriptions were dropped in the subsequent codes of conduct of 2009 and 2010 (more on this here).
(5) A day after the OTP released its 2016 Preliminary Examination Report on Afghanistan, the Afghan National Security Council, led by President Ghani, finally publically announced its commitment to the Rome Statute and other related matters, including prohibiting the recruitment of child soldiers into the Afghan National Security Forces, prohibiting civilian casualties, eliminating torture and bringing reform to the judiciary so that it can adjudicate international crimes. Additionally, the National Security Council stressed its commitment to cooperate with the ICC. Prior to this, in in January 2016, Afghanistan had established an inter-ministerial committee to look into how the country could interact with the ICC. The committee was tasked with developing a regulation to manage Afghanistan’s interaction with the ICC. That regulation is now in operation with the AIHRC in charge. A year ago, the OTP complained about the lack of Afghan government cooperation. In this month’s report, it said Afghanistan was preparing to share the “required information” with it.
(6) South Africa, Burundi and Gambia were joined on 16 November 2016 by Russia which said it was formally withdrawing its signature from the Rome Treaty, a day after the ICC published a report classifying the Russian annexation of Crimea in March 2014 as an occupation.
Revisions:
This article was last updated on 9 Mar 2020
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