Human rights advocates celebrated Thursday after the International Criminal Court determined that an investigation into alleged war crimes committed by United States forces and others in Afghanistan during the so-called War on Terror can proceed.
The ICC's Appeals Chamber unanimously overturned an April 2019 Pre-Trial Chamber decision that denied a November 2017 request from Chief Prosecutor Fatou Bensouda to formally investigate crimes committed by members of the U.S. armed forces, the CIA, the Taliban, affiliated armed groups, and Afghan government forces. The approved scope of the probe also includes crimes committed as part of the U.S. torture program at CIA black sites in Poland, Lithuania, and Romania.
"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," declared Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights. Her organization represents two men who were tortured in CIA black sites and other facilities, and currently are being held indefinitely at the Guantánamo Bay detention camp in Cuba.
"For more than 15 years, like too many other victims of the U.S. torture program, Sharqawi Al-Hajj and Guled Duran have suffered physically and mentally in unlawful U.S. detention, while former senior U.S.officials have enjoyed impunity," Gallagher said. "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."
TOTAL WIN!!! The #ICC Appeals Chamber authorized the opening of an investigation into war crimes & crimes against humanity in #Afghanistan including into CIA/US #torture there & in blacksites. Bush-era US global torture program FINALLY under criminal investigation! #EndImpunity https://t.co/2e1ea15vth
— Katherine Gallagher (@katherga1) March 5, 2020
"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," said Preetha Gopalan, head of U.K. litigation for the group Reprieve, which represents other victims before the ICC.
"This is the first time the U.S. will be held to account for its actions, even though it tried to bully the ICC into shutting this investigation down," Gopalan added. "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."
"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."
—Jamil Dakwar, ACLU
The ACLU currently represents Khaled El Masri, Suleiman Salim, and Mohamed Ben Soud—who were detained and tortured in Afghanistan—before the ICC. Jamil Dakwar, director of the ACLU's Human Rights Program, also welcomed the news Thursday.
"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," he said. "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," Dakwar added. "It is past time perpetrators are held accountable for well-documented war crimes that haunt survivors and the families of victims to this day."
Despite the ICC's green light to proceed with the investigation, holding any Americans accountable will likely prove difficult, given that the Bush, Obama, and Trump administrations all refused to formally recognize the Hague-based court, which prosecutes perpetrators of war crimes, crimes against humanity, and genocide.
Although the ICC officially has jurisdiction over crimes committed by U.S. actors within countries that are parties to the Rome Statute, President Donald Trump—infamous for granting clemency to Americans accused of war crimes—isn't expected to allow any U.S. cooperation with the court's investigation, based on his administration's efforts to quash the probe.
— Parampreet Singh (@singhp_p) March 5, 2020
U.S. Secretary of State Mike Pompeo boasted in August 2019 that the Trump administration's bullying tactics had blocked an ICC probe. In 2018, John Bolton, who then served Trump's national security adviser, vowed: "We won't cooperate with the ICC. We will provide no assistance to the ICC. And we certainly will not join the ICC. We will let the ICC die on its own... If the court comes after us, we will not sit quietly."
Pompeo blasted the Appeals Chamber's decision in a statement Thursday, saying, "This is a truly breathtaking action by an unaccountable political institution, masquerading as a legal body." The secretary noted the move came just days after the administration signed a deal with the Taliban and that United State is not party to the ICC, and promised that "we will take all necessary measures to protect our citizens from this renegade, so-called court."
"This is yet another reminder of what happens when multilateral bodies lack oversight and responsible leadership, and become instead a vehicle for political vendettas," added Pompeo. "The ICC has today stumbled into a sorry affirmation of every denunciation made by its harshest critics over the past three decades."
In response Pompeo's remarks, the ACLU's Dakwar told Common Dreams in an emailed statement that "no one except the world's most brutal regimes win when the United States tries to impugn and sabotage international institutions established to hold human rights abusers accountable."
James A. Goldston, executive director of the Open Society Justice Initiative, shared on Twitter an ICC video announcing the decision Thursday and urged supporters of the court "to demand respect for this judicial decision."
— JamesAGoldston (@JamesAGoldston) March 5, 2020
The New York Times reported Thursday that the ICC's decision brought hope for some Afghan civilians, including Masih Ur-Rahman Mubarez, whose wife, seven children, and four other relatives were killed in a U.S. airstrike targeting Taliban members in September.
"I will never find peace of mind," said Mubarez. "But if the ICC punishes Americans who killed my children, I will be happy."
This post has been updated with additional comments from U.S. Secretary of State Mike Pompeo and Jamil Dakwar of the ACLU.