What the ICC's War Crimes Investigation in Afghanistan Foreshadows, with Matt Cannock

Published March 11th, 2020 - 06:47 GMT
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U.S. Soldiers (AFPFILE)

In the summer of 2002, the United States was busy cementing its military occupation of Afghanistan that began the year before, and was gearing up for the additional invasion of Iraq. Backed by a bipartisan consensus and an American populace convinced the only answer to 9/11 was an all-out global war, the U.S. government passed a law threatening to invade yet another country—this one far away from the Middle East: the small European nation of The Netherlands. 

The country’s crime? Housing the International Criminal Court (ICC), which U.S. officials feared would begin investigating them over war crimes in Afghanistan. George W. Bush, the President at the time, called the ICC “troubling to the United States.” 

Nicknamed the Hague Invasion Act, the law states, "The United States Government has an obligation to protect the members of its Armed Forces, to the maximum extent possible, against criminal prosecutions carried out by the International Criminal Court.” The maximum extent, hinted by lawmakers, included staging a military intervention at The Hague to pull out any U.S. Army members or politicians who may be held by the court. 

That law is technically still in effect even if it was an act of political theater designed to dissuade any international court’s attempts to investigate U.S. wartime conduct. But on March 5, 2020, the ICC announced it was opening a formal criminal inquiry into potential war crimes committed in Afghanistan by its warring parties, including the Taliban, Afghan government, and U.S. forces.

Although the ICC’s investigation has been criticized by U.S. officials under the Trump Administration, international justice advocates are heralding it as a unique moment for global accountability as it represents the first time the ICC has opened an investigation against a superpower nation.

Al Bawaba spoke with Matt Cannock who heads Amnesty International’s Centre for International Justice, which is just a short walk away from the ICC’s headquarters in The Hague. In our conversation, Cannock makes clear that not only is the ICC’s decision to investigate U.S. actions in Afghanistan a historic moment, it is one of a growing number of ambitious decisions the ICC has undertaken in the last 12 months, and suggests 2020 could be a transformative year for accountability.


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Matt Cannock (left)

Even if the court’s move is functionally only a symbolic measure, as U.S. officials work to undermine it, it could produce tangible results in coordinated efforts by locals courts in Afghanistan. 

According to the ICC, “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.”

These investigations appear to be based off at least 699 victim accounts to be represented from a war that has gone on nearly two decades, and killed over 43,000 civilians.

In response to the ICC’s decision, U.S. officials wasted no time deriding the court.

“This is a truly breathtaking action by an unaccountable political institution masquerading as a legal body,” Secretary of State Mike Pompeo said of the ICC, adding that the U.S. would take “all actions” necessary to protect US officials from the investigation from what he described to be a “renegade” court. 

Pompeo’s reaction was “not a surprise,” to Cannock, who notes that the U.S. has been pitted in a years-long antagonistic relationship to the ICC. “Over the last year or so, the U.S. has also threatened the prosecutor, it has imposed visa bans on her and other court staff as well.”

“The process itself should and could lead to investigations and prosecutions in Afghanistan by Afghanistan government.”

“The idea that the court is unaccountable would probably come as news to the 123 states who sit in its assemblies,” Cannock quips. He also predicts the U.S. will likely continue to hamper cooperation and threaten ICC officials in the hopes to complicate the investigation’s proceedings

“The vast majority of the investigation will take place in Afghanistan, and involve Taliban and Afghan forces,” in addition to U.S. forces. 

While Cannock added that the ICC’s proceedings themselves may not do justice to the myriad victims seeking reparations and accountability from the court, it could result in a legal cascade effect, where the ICC’s actions prompt local governments to jumpstart their own respective investigations of potential war crimes.

“The process itself should and could lead to investigations and prosecutions in Afghanistan by Afghanistan government.”

“But also potentially, we would hope it urge the U.S. government to start undertaking these investigations and prosecutions alongside this process.”

“The court does indeed seem to be moving into a direction where it might meet its lofty aims in the Rome Statute.”

At the same time as the ICC begins its inquiry into Afghanistan, it has also begun questioning whether it has the jurisdiction to investigate and prosecute potential crimes inside the occupied Palestinian territories.

2020 could turn out to be the year the ICC expanded its international role, transforming itself from a mostly symbolic institution focused on the war crimes of African warlords to one investigating major country leaders including the United States, Sudan and Israel. 

“The court does indeed seem to be moving into a direction where it might meet its lofty aims in the Rome Statute.”

To listen to the full conversation, click here:

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