International Criminal Court Authorizes Investigation into War Crimes in Afghanistan, Including US Torture Program

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Good news from The Hague, as the Appeals Chamber of the International Criminal Court (ICC) has approved an investigation into war crimes and crimes against humanity committed in Afghanistan since May 2003 “by US armed forces and members of the CIA, the Taliban and affiliated armed groups, and Afghan government forces,” as the Center for Constitutional Rights (CCR) explained in a press release.

The investigation, as CCR also explained, will include “crimes against humanity and war crimes … committed as part of the US torture program,” not only in Afghanistan but also in “the territory of other States Parties to the Rome Statute implicated in the US torture program”; in other words, other sites in the CIA’s global network of “black site” torture prisons, which, notoriously, included facilities in Poland, Romania and Lithuania. As CCR explained, “Although the United States is not a party to the ICC Statute, the Court has jurisdiction over crimes committed by US actors on the territory of a State Party to the ICC,” and this aspect of the investigation will look at crimes committed since July 1, 2002.

AS CCR also explained, “The investigation marks the first time senior US officials may face criminal liability for their involvement in the torture program.”

Today’s ruling reversed a previous — and widely-criticized — decision by the ICC’s Pre-Trial Chamber, on April 12, 2019, not to authorize the investigation that was first submitted by the ICC’s Chief Prosecutor Fatou Bensouda on November 20, 2017. As CCR explained, this was “the first time the ICC had denied a Prosecutor’s request to open an investigation,” and it “came on the heels of overt hostility toward the Court by the Trump administration. US officials threatened to impose sanctions on and criminally prosecute ICC officials and revoked the ICC Prosecutor’s visa to the United States.”

In an effort to deflect attention from the court’s political cowardice, the Pre-Trial Chamber concluded last year that, although “the legal criteria for opening an investigation were satisfied,” because “there was evidence of grave crimes within the jurisdiction of the Court, which were not being prosecuted elsewhere,” the request for an investigation was rejected, because it “would not serve the interests of justice,” because of the court’s speculation that the states concerned “would not cooperate,” and because, as they explained, the “political climate” and “political landscape” would, in CCR’s words, “make a meaningful investigation difficult.”

In response to last April’s ruling, as CCR noted, “Former diplomats, chief prosecutors, and United Nations Special Rapporteurs, as well as other international human rights and criminal law experts and non-governmental organizations, submitted amicus briefs in support of the investigation.”

In addition, at a hearing before the Appellate Chamber in December, attorneys representing victims of the US torture program “argued,” as CCR described it, “that the ICC investigation into the Afghanistan situation represents their last opportunity to obtain some measure of justice for the grave crimes they suffered,” adding, “The United States has been unwilling to investigate and prosecute civilian and military leadership responsible for torture and other grave violations of international law. The ICC is the court of last resort for those who have been denied justice elsewhere.”

CCR represents two men who, as they put it, “were tortured in CIA black sites, proxy-detention, and DoD facilities,” and are now held indefinitely in Guantánamo. These two men, Sharqawi Al-Hajj and Guled Hassan Duran, are “among victims who submitted representations in support of the Prosecutor’s request, detailing their experiences,: and, as CCR also explained — and as I wrote about here — Sharqawi Al-Hajj “recently attempted suicide, cutting his wrists.”

Another former “black site” prisoner who is part of the case — and who was not held in Guantánamo — is Mohammed al-Asad, who, sadly, died in 2016 “without seeing justice done,” as CCR put it, adding that “his wife continues his quest” with the support of the Global Justice Clinic at NYU School of Law. As CCR also explained, “Al-Asad “was secretly detained and tortured in Djibouti and Afghanistan — both Member States of the ICC — as part of the US torture program.”

As CCR also described it, “Other legal teams representing victims before the ICC include Reprieve and the attorneys for Abd al-Rahim al-Nashiri,” also held at Guantánamo and charged in seemingly interminable military commission trial proceedings.

Commenting on today’s news, Katherine Gallagher, CCR Senior Staff Attorney and ICC Victims Legal Representative, said, “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. For more than 15 years, like too many other victims of the US torture program, Sharqawi Al-Hajj and Guled Duran have suffered physically and mentally in unlawful US detention, while former senior US officials have enjoyed impunity. In authorizing this critical and much-delayed investigation into crimes in and related to Afghanistan, the Court made clear that political interference in judicial proceedings will not be tolerated.”

Nikki Reisch, Counsel for the Global Justice Clinic at NYU School of Law, said, “On behalf of our client, Mohammed al-Asad and his surviving family, we applaud the Appeals Chamber for rejecting the repugnant logic of the US torture program, which sought to place detainees in a legal black hole and deny them access to justice for the abuses they suffered. At a time when authoritarian tendencies are on the rise, the decision sends an important signal to all states that might does not make right, and that no one is above the law.”

Reprieve represents another Guantánamo prisoner, Ahmed Rabbani, who “was among the victims who supported the appeal.” Rendered to Afghanistan and tortured for 540 days by US personnel, he has been held in Guantánamo since 2004 without charge or trial. Responding to the news that the appeal has been upheld, he said, “If the people who tortured me are investigated and prosecuted, I will be very happy. I would ask just one thing from them: an apology. If they are willing to compensate me with $1 million for each year I have spent here, that will not be enough. I am still going through suffering and torture at present. But I would be happy with just three words: ‘We are sorry.’”

Reprieve’s Deputy Head of UK litigation, Preetha Gopalan, added, “This decision is welcome news to everyone who believes that the perpetrators of war crimes should not enjoy impunity, no matter how powerful they are. This is the first time the US will be held to account for its actions, even though it tried to bully the ICC into shutting this investigation down. That the ICC did not bow to that pressure, and instead upheld victims’ right to accountability, gives us hope that no one is beyond the reach of justice.”

As Reprieve also explained in their press release, “The court’s decision comes at a time when both the US and UK are attempting to block domestic investigations into ‘war on terror’ era torture and rendition. The UK Government is facing a High Court challenge of its failure to hold an independent judge-led inquiry into historic abuses. In the US President Donald Trump recently intervened in three war crimes cases, pardoning two service members and restoring the rank of a third.” Reinforcing the UK angle, the Guardian reported that it is “possible” that “allegations relating to UK troops” could emerge as the investigation proceeds, with, presumably, other NATO forces also not immune to scrutiny of their actions.

The American Civil Liberties Union (ACLU), which “currently represents Khaled El Masri, Suleiman Salim, and Mohamed Ben Soud — all of whom were detained and tortured in Afghanistan — before the ICC,” also issued a statement, via Jamil Dakwar, director of its Human Rights Program, who said, “This decision vindicates the rule of law and gives hope to the thousands of victims seeking accountability when domestic courts and authorities have failed them. While the road ahead is still long and bumpy, this decision is a significant milestone that bolsters the ICC’s independence in the face of the Trump administration’s bullying tactics. Countries must fully cooperate with this investigation and not submit to any authoritarian efforts by the Trump administration to sabotage it. It is past time perpetrators are held accountable for well-documented war crimes that haunt survivors and the families of victims to this day.”

Note: For further information, visit the Center for Constitutional Rights’ case page.

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Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or here for the US, or you can watch it online here, via the production company Spectacle, for £2.55), and for his photo project ‘The State of London’ he publishes a photo a day from seven years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.

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