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The ICC is looking into possible war crimes committed by US forces in Afghanistan. There are doubts about whether any CIA agents will ever be prosecuted for torture - but there are other options.
The alleged kidnapping, torture and rape of detainees in Afghanistan by US armed forces are coming under more scrutiny at the International Criminal Court (ICC) in The Hague.
Chief prosecutor Fatou Bensouda's annual Preliminary Examination Activities report for 2015 found that "members of the US armed forces and the US Central Intelligence Agency (CIA) resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape."
The prosecutors have found evidence that 61 detainees were subjected to "torture, cruel treatment, outrages upon personal dignity" in Afghanistan between May 2003 and December 2014 (mostly at the outset of the war in 2003 and 2004). Meanwhile, the CIA is being investigated for the same crimes - as well as rape - against 27 detainees in Afghanistan and secret prisons in Poland, Romania and Lithuania.
The ICC also underlined that the alleged crimes seemed to have been part of an officially sanctioned system "approved at senior levels of the US government." "The alleged crimes were not the abuses of a few isolated individuals," it read. "Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract 'actionable intelligence' from detainees."
This systematic nature of the crimes increased their "gravity," the report added, and caused considerable suffering: "Some victims reportedly exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation."
Andreas Schüller, program director for international crimes at the European Center for Constitutional and Human Rights (ECCHR), welcomed the report, but emphasized that this was just part of a wider examination, and that the ICC itself was part of an international judicial process that also involves military and civilian courts in the US and elsewhere: there are criminal investigations and pending court cases ongoing in Spain, Germany, Poland, Romania and Lithuania into alleged crimes committed by the CIA - either because they were perpetrated on their territories or with the collusion of their security forces.
The ECCHR itself filed a lawsuit on behalf of the German-Lebanese man Khalid el Masri, who was a victim of the CIA's extraordinary rendition program and says he spent several months being tortured in Afghanistan.
"You also have cases currently open on Guantanamo against US officials by the French judiciary, where former Guantanamo commander Geoffrey Miller has been summoned earlier this year to appear as an accused witness," said Schüller. (Miller, a retired US army general, ignored the summons.)
Overcoming the obstacles
The fact that the US, like many African countries, is not a party to the ICC is not an obstacle to the investigation. For one thing, Afghanistan ratified the Rome Statute that underpins the court in 2003, and therefore any crimes carried out on its territory (whether by military personnel or not) are within ICC jurisdiction.
German citizen Khalid el Masri was abused in Afghanistan by CIA agents
Moreover, as the ICC itself pointed out in a statement on Tuesday, its prosecutor's office is obliged to investigate all alleged crimes brought to its attention, regardless of potential legal problems. In the case of Afghanistan, prosecutors said on Tuesday that they will decide "imminently" whether to seek authorization to open a full-scale investigation.
But whether that will ever lead to any prosecutions of CIA agents is very doubtful. "It's not realistic, because the US has not ratified the statute, and even if it had, the US government has said repeatedly that it will not extradite any of its citizens to the ICC," said Wolfgang Heinz, senior policy adviser at the German Institute for Human Rights.
US State Department spokeswoman Elizabeth Trudeau said Tuesday that an ICC probe into the actions of US personnel in Afghanistan would not be "warranted or appropriate," adding that the US had its own "system of accountability."
"We have extensively examined our own activities. In many cases people were held accountable," she said.
Nevertheless, should the ICC decide to pursue its investigations and if it identifies US suspects living in other countries, it could seek their extradition. "That's been done before - the US embassy will apply pressure of course, but then you're not absolutely safe," Heinz said.
There are also other judicial options: the European Court of Human Rights (ECHR) can prosecute European governments suspected of colluding in the CIA's human rights abuses. This has happened before: in 2014, the Polish government was convicted of collusion in the CIA's extraordinary rendition program and ordered to pay compensation to two men.
The US' alleged crimes are not the only ones related to the Afghanistan war being examined - those perpetrated by the Taliban, other anti-government groups, and Afghan government forces are also mentioned in the report, as are war crimes by various parties in eight other conflict zones around the world - in Europe, the Middle East, Africa, and South America.