International court for first time approves war crimes investigation of US forces

Appeals judges on the International Criminal Court (ICC) on Thursday approved a request to investigate alleged war crimes committed by U.S. military forces, CIA personnel, the Taliban and Afghan forces in Afghanistan. 

The move overturns a lower court decision and allows prosecutor Fatou Bensouda to launch a probe into alleged war crimes by U.S. forces for the first time, according to The Associated Press. The U.S. government has long refused to cooperate with the court. 

“The Appeals Chamber considers it appropriate to amend the appealed decision to the effect that the prosecutor is authorized to commence an investigation into alleged crimes committed on the territory of Afghanistan since May 1, 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan,” presiding Judge Piotr Hofmanski said, ruling that the court’s chief prosecutor had found appropriate grounds to probe alleged war crimes in Afghanistan.

Judges who heard pretrial arguments reportedly rejected Bensouda’s request to open an investigation in April. The judges based their decision at the time on the belief that a lack of cooperation would inhibit the probe from concluding with convictions. 

The global court’s decision on Thursday upheld the appeal that Bensouda later filed.

The latest decision was praised by human rights groups who have repeatedly advocated for probes into the alleged atrocities committed in the region. 

“The ICC Appeals Chamber’s decision to green light an investigation of brutal crimes in Afghanistan despite extreme pressure on the court’s independence reaffirms the court’s essential role for victims when all other doors to justice are closed,” Param-Preet Singh, associate international justice director at Human Rights Watch, told the AP. 

Attorneys representing victims of a U.S. torture program have argued that an ICC probe represents the final opportunity to gain justice for some of the alleged crimes that were committed. 

“Today, the International Criminal Court breathed new life into the mantra that ‘no one is above the law’ and restored some hope that justice can be available — and applied — to all,” Katherine Gallagher, a senior staff attorney at the Center for Constitutional Rights and ICC Victims Legal Representative, said in a statement. 

It remains unclear if anyone being investigated will cooperate with the investigation once it proceeds. Afghanistan and the U.S. have voiced opposition to the probe. The U.S. is not a member of the Hague-based court, and the Trump administration last year imposed travel restrictions on ICC employees, Reuters reported. 

Bensouda has argued that there is basis for an investigation into the alleged mass killings of civilians by the Taliban, in addition to the torture of prisoners by Afghan forces. He reportedly believes there is cause to investigate U.S. forces for its treatment of prisoners as well. 

The court’s decision arrives less than a week after the U.S. signed an agreement with the Taliban that would withdraw thousands of American troops still in the country. But signs of trouble have already emerged, and the U.S. launched an airstrike on the Taliban on Wednesday. 

A U.S. military spokesperson said the strike was launched to interrupt a Taliban attack on a checkpoint manned by the Afghan National Defense and Security Forces.

Updated at 10:21 a.m.