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Why go after U.S. troops?
Why not go after Taliban,Al-Queda,ISIS,Al-Shabab, et-al?
The International Criminal Court in The Hague is tiptoeing closer to a confrontation with the United States. The key issue is U.S. detention practices, and the alleged use of torture, in Afghanistan. A report just released by the office of the court’s prosecutor, Fatou Bensouda, for the first time explicitly names U.S. forces as potential culprits.
The back story of the International Criminal Court’s (ICC’s) inquiry into possible crimes in Afghanistan extends more than a decade. Afghanistan joined the ICC in early 2003, less than a year after the court opened its doors. That move gave the international prosecutor potentially broad jurisdiction over crimes committed by all combatants on Afghan soil. Shortly thereafter, the ICC opened what it calls a “preliminary examination” of possible crimes in the country. In this phase of the court’s work, the prosecutor’s office reviews mainly outside sources of information about situations and considers whether to launch a full investigation of its own.
Year after year, the court’s inquiry on Afghanistan has remained in limbo, even as reports of abuses in Afghanistan accumulate. The United Nations estimates that about 8,000 civilians have been killed in the country since 2009 alone.
To many observers, the ICC’s sluggishness in responding to one of the world’s bloodier conflicts appeared odd, particularly as it opened multiple formal investigations in Africa. It was hard to avoid the conclusion that the ICC might be avoiding Afghanistan precisely because an investigation there would involve scrutiny of U.S. actions and otherwise complicate major-power diplomacy related to the conflict. No NATO state involved in Afghanistan has expressed support for an ICC role.
While the court’s inner workings are not easy to divine, it appears that a more assertive approach to Afghanistan developed sometime after Bensouda took over from the court’s first prosecutor, Luis Moreno-Ocampo, in mid-2012. As prosecution officials prepared an update on the Afghan situation, they gathered NGO reports of abuses by U.S. forces and material from U.S. internal inquirers to go along with much more voluminous material on Taliban crimes and alleged Afghan government abuses.
In a Foreign Policy article published in May, I detailed the heartburn that the court’s more energized inquiry was causing in Washington. In 2013, three senior State Department officials dashed to The Hague for a meeting with the deputy prosecutor, veteran Canadian lawyer James Stewart. At that meeting, the U.S. officials discouraged the prosecutor from specifically discussing alleged U.S. misconduct. It appears that Washington’s alarm had an impact; the ICC’s 2013 update on Afghanistan contained no direct references to U.S. forces. Allegations of U.S. misconduct were instead lumped into the category of “pro-government forces” and elided by the passive voice. “It has been alleged,” 2013’s report noted, “that, between 2002 and 2006, some of the detainees captured in Afghanistan were subjected to interrogation techniques which may constitute torture or inhumane treatment.”
Starvin Larry 