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UN Preliminary Examination: United States War Crimes in Afghanistan

In Human Rights by Dusty Croghan

Focus: Alleged crimes against humanity and war crimes committed in Afghanistan since 1 May 2003

Established in 2002, the International Criminal Court (ICC) is the world’s first permanent court set up to prosecute war crimes, crimes against humanity and genocide. More than 120 countries are members, but superpowers including the US, Russia and China have not signed up.

The Prosecutor of the International Criminal Court, Fatou Bensouda, issued her annual Report on Preliminary Examination Activities for 2016 on November 14th, 2016. The report is the 6th report involving the situation and according to the ICC, the Prosecutor is planning to reach a final determination with respect to the situation in Afghanistan in the very near future. Under the Rome Statute, the Office is required to conduct an examination of all communications and situations brought to its attention in order to determine whether there is a reasonable basis to proceed with an investigation.

The preliminary report states the following:

“As a result of its examination, the Office has determined that there is a reasonable basis to believe that, at a minimum, the following crimes within the Court’s jurisdiction have occurred:
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;
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, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.”

See Archive of Excerpts “Brother of Afghan Leader Said to Be Paid by C.I.A.”
See Archive of Excerpts “How Jimmy Carter and I Started the Mujahideen”

Afghanistan deposited its instrument of accession to the Rome Statute on 10 February 2003. The ICC may therefore exercise its jurisdiction over crimes listed in the Rome Statute committed on the territory of Afghanistan or by its nationals from 1 May 2003 onwards.

The preliminary examination of the situation in Afghanistan was made public in 2007. The OTP has received numerous communications under article 15 of the Rome Statute related to this situation. The preliminary examination focuses on crimes listed in the Rome Statute allegedly committed in the context of the armed conflict between pro-Government forces and anti-Government forces, including the crimes against humanity of murder, and imprisonment or other severe deprivation of physical liberty; and the war crimes of murder; cruel treatment; outrages upon personal dignity; the passing of sentences and carrying out of executions without proper judicial authority; intentional attacks against civilians, civilian objects and humanitarian assistance missions; and treacherously killing or wounding an enemy combatant. The preliminary examination also focuses on the existence and genuineness of national proceedings in relation to these crimes.

See the ICC ongoing investigation and related documents here.