When The Hague-based International Criminal Court (ICC) announced it was planning to investigate alleged war crimes in Afghanistan, the timing seemed appropriate.
The announcement by the ICC on November 3 came within days of a deadly airstrike by US forces in northern Afghanistan, which UN officials say killed ten civilians.
But the history of the intergovernmental court since it was set up some 15 years ago gives pause to hope that it might deliver justice in Afghanistan. For many critics, the ICC is a byword for self-serving Western political control, either whitewashing crimes or smearing designated opponents. A pertinent question is: why has it taken the ICC so long to investigate alleged crimes in Afghanistan’s war?
The Pentagon claimed the air raid near the city of Kunduz on November 4 killed only Taliban militants. However, last week the United Nations Assistance Mission in Afghanistan (UNAMA) provided a very different version of events. UNAMA said extensive interviews with local residents and medics show that at least ten civilians died in the airstrike.
The incident would, therefore, be a prime case to investigate. ICC chief prosecutor Fatou Bensouda has promised an investigation into any alleged war crimes in Afghanistan would be “independent, impartial and objective.”
As a Reuters report stated, the ICC “could examine the role of US forces” in Afghanistan, which have been occupying the country for the past 16 years since October 2001, following the 9/11 terror attacks in Washington DC and New York City.
US torture practices conducted during CIA interrogations and renditions could also be probed, according to reports. An earlier announcement by the ICC said it would be looking into alleged violations committed by three parties: US military, Afghan security forces, and Taliban militants.
If the ICC did carry out an earnest probe into alleged war crimes in Afghanistan, it would have its work cut out – even if it just restricted itself to incidents involving US forces and the CIA.
Two years ago, in October 2015, the northern city of Kunduz was the location of another apparent atrocity committed by the US air force. A hospital run by the French-based Medecins Sans Frontieres (MSF) was bombed and machine-gunned by US aircraft, killing 42 medical staff and patients. MSF condemned the attack as a violation of the Geneva Convention – a war crime. Though, the Pentagon maintained that its forces made a mistake while targeting militants.
There is very little clarity on the number of Afghan civilians who have been killed by US forces over the past 16 years, from gun battles, house raids, drone strikes, and airstrikes. One estimate puts the total number of civilian deaths in the war at over 31,000. Many of them are victims of Taliban shootings, and bombings or operations carried out by the US-backed Afghan security forces.
Nevertheless, there are abundant incidents involving civilians being killed by US operations in what could merit war crimes prosecutions. This is especially so given the renewal of American military operations in the country ordered by President Trump in August this year – three years after the US forces were officially supposed to wind down.
Trump’s defense secretary James Mattis, on a trip to the Afghan capital Kabul in September, warned that US airstrikes would be ramped up in the coming months. Already this year, the UN reports that there was a surge in civilian casualties from American-backed air raids. The situation has an ominous resonance with how civilian casualties have escalated from increased US airstrikes in Iraq and Syria under the Trump administration’s wider authorization to the Pentagon to mount operations.
So, it seems clear that if the ICC were to open prosecution cases in Afghanistan it would, to say the least, be kept busy. However, critics of the ICC say that its intentions are not motivated by seeking justice.
It’s a political move, says international criminal lawyer Christopher Black.
Since its establishment in 2002, the international court has come in for much criticism that it is a “political tool” of the United States and European allies. Virtually all of the court’s prosecutions and indictments have been against African leaders. For example, Omar Bashir (Sudan), Uhuru Kenyatta (Kenya), Muammar Gaddafi (Libya), and Laurent Gbagbo (Ivory Coast) are among those indicted by the ICC.
The US is not a member of the 123-nation ICC. Neither are Russia, China, and India. However, the US exerts a controlling influence over the court’s prosecution office via European governments and the European Union, which are dominant in the administration of the ICC.
“The United States and its European allies use the ICC as a means of political control, not for justice,” says Christopher Black who is registered on the defense counsel for the court, but who has vociferously criticized its political subservience.
Black says the ICC has a similar function to several other ad hoc international tribunals, such as those which purportedly investigated war crimes in Rwanda and former Yugoslavia.
“These courts serve to cover-up actual crimes committed by Western powers while criminalizing political enemies of the West,” says Black.
In the case of former Yugoslavia, he points out, the Hague-based court did not examine the putative crimes of NATO bombing Belgrade in 1999. It only went after former Yugoslav President Slobodan Milosevic whom Washington and the European governments wanted to criminalize to justify NATO’s illegal intervention in the Balkans.
With regard to Afghanistan, the declared intention of the ICC to divide its investigations between US and Afghan parties raises the suspicion the court will seek to mitigate violations carried out by American forces by embroiling other criminal actors.
Even if the ICC were to find US forces guilty of war crimes, it is doubtful that Washington would take any notice of such rulings.
As Christopher Black points out too, the focus of any forthcoming investigation is misplaced in its entire framework. “The focus of a war crimes investigation should be looking at the way the US launched this military occupation back in 2001. A case can be made that the US is guilty of the supreme crime of war of aggression. All other violations stem from Washington committing the ultimate crime of going to war in Afghanistan.”
He says the ICC planned investigation is a piecemeal approach which will serve to conceal the primary responsibility of the US in Afghanistan.
So why then would the ICC bother to set up such a probe into Afghanistan?
The answer is simply to salvage much-needed credibility for the court. Because of its lop-sided focus in prosecuting African leaders, the ICC has come under fire from African members for “double standards” and serving as a neocolonial instrument for Western powers.
Beginning last year, several African nations threatened to walk away from the ICC, including Kenya, Namibia, South Africa, Gambia, and Uganda. Last month, Burundi formally completed its withdrawal from the ICC.
In other words, the court is in danger of imploding from lack of credibility. Hence, the announcement to go into Afghanistan is an attempt to salvage authority and public image by appearing to, at last, investigate alleged American war crimes.
“This is all about giving the ICC some badly needed credibility as it unravels in the face of a mass African walk-out,” says lawyer Christopher Black.
As such US and NATO states have nothing to fear from this proposed war crimes investigation in Afghanistan. It’s a cover-up and a sham driven by political interests, not by justice.
By Finian Cunningham