David Scheffer, former U.S. ambassador-at-large for war crimes issues under the Clinton administration, provided National Public Radio (NPR) details on Wednesday of the International Criminal Court (ICC)’s impending investigation into alleged war crimes committed in Afghanistan by U.S. troops.
The revelations come just two days after the United States announced it would no longer recognize the “illegitimate” ICC and include claims of U.S. military and intelligence personnel committing torture, inhumane treatment, and rape of detainees from 2003 to 2018.
Scheffer said the ICC has “concerns about 88 individuals in Afghanistan after 9/11 [who were] allegedly tortured, subjected to inhumane treatment and even rape[d] by U.S. military personnel and Central Intelligence Agency personnel, not only in Afghanistan but also at so-called black sites in Poland, Lithuania, and Romania.”
Scheffer said the investigation of Americans is part of a larger probe Fatou Bensouda, the ICC prosecutor, is conducting, which he said involves “mostly Taliban crimes.”
When asked if the investigation would continue despite National Security Adviser John Bolton’s announcement on Monday, Scheffer said it would and that if the U.S. does not cooperate in the investigation Bensouda could “identify individuals who she believes may be responsible and ultimately indict them.”
The left-wing Democracy Now television program reported that the ICC’s investigation into U.S. troops misdeeds in Afghanistan dates back to 2016.
“In 2016, an ICC report accused the U.S. military of torturing at least 61 prisoners in Afghanistan during the ongoing war. The report also accused the CIA of subjecting at least 27 prisoners to torture, including rape, at CIA prison sites in Afghanistan, Poland, Romania, and Lithuania,” host Amy Goodman said in a Democracy Now transcript posted on its website.
Goodman interviewed Jamil Dakwar, director of the American Civil Liberties Union’s (ACLU) human rights program.
“This is unheard of, that we have a government and a country that has committed acts of torture in another country, and the country itself, the United States, failed to hold any official accountable for acts of torture by the CIA, by the U.S. military, during the armed conflict in Afghanistan,” Dakwar said, later offering more about the ICC investigation.
“Ultimately, [the United States is] seeing that the ICC is about to open a full investigation into torture in Afghanistan,” Dakwar told Democracy Now. “As a report said, this investigation is not only against the United States.”
“It is the United States and Afghan forces, Taliban forces who were part of the armed conflict in Afghanistan,” Dakwar said. “What makes it so important and significant here is that the United States is the country that has the longest tradition of upholding the rule of law and having independent investigative bodies and judiciary to investigate acts of torture when they occur, and yet it failed to do so.”
“That is why the ICC is stepping in,” Dakwar said.
On Monday, Bolton made clear that the impending investigation inspired the timing of the announcement — the eve of the 9/11 attacks that led the U.S. to take military action in Afghanistan. But the court’s flaws led to the decision, according to Bolton.
“Today, on the eve of September 11th, I want to deliver a clear and unambiguous message on behalf of the President of the United States,” Bolton said. “The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.”
“We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC,” Bolton said. “We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.”
The ICC responded to Bolton’s announcement with a statement posted on its website on Wednesday.
The Court was established and constituted under the Rome Statute, the Court’s founding treaty – to which 123 countries from all regions of the world are party and have pledged their support through ratification –as an instrument to ensure accountability for crimes that shock the conscience of humanity. The Court is an independent and impartial judicial institution.
The Court’s jurisdiction is subject to the primary jurisdiction of States themselves to investigate and prosecute allegations of those crimes and bring justice to the affected communities. It is only when the States concerned fail to do so at all or genuinely that the ICC will exercise jurisdiction.
The ICC, as a court of law, will continue to do its work undeterred, in accordance with those principles and the overarching idea of the rule of law.
The White House released a fact sheet on its ICC decision on the same day Bolton made the announcement, including a statement about the Trump administration’s “America first” agenda.
“This administration will fight back to protect American constitutionalism, our sovereignty, and our citizens,” the fact sheet said. “As always, in every decision we make, we will put the interests of the American People first.”
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