The US is not a party to the 2002 Rome Statute which led to the establishment of the ICC. Washington also argues that its own courts have done a good enough job at prosecuting such allegations of abuses in foreign countries.
Afghanistan first joined the ICC in 2003. Since then the country itself has never referred any cases to the court. However, the ICC has been conducting preliminary investigations into potential crimes in the country since 2007.
The US military is accused of the ill-treatment and torture of at least 61 detainees in Afghanistan between May 1, 2003, and December 31, 2014. The CIA is accused of torturing and raping at least 27 other detainees in Afghanistan and in secret detention facilities in Europe between 2002 and 2008.
The court says the alleged crimes were “committed with particular cruelty and in a manner that debased the basic human dignity of the victims.” The majority of these offences took place between 2003 and 2004.
The Senate report came a week after the ICC issued its own 2014 report that they were looking into: “alleged torture or ill-treatment of conflict-related detainees by US armed forces in Afghanistan in the period [between] 2003-2008.”
In the past, Washington has maintained that the ICC “should not have jurisdiction over non-parties,” including the US.
This would be true if the alleged crimes had been conducted on US soil. Therefore, the ICC argues that they have jurisdiction over possible crimes committed on Afghan territory.
Ehsan Qaane, an analyst at the Afghanistan Analyst Network, a Kabul-based think tank, said this means that “the nationality of the perpetrator” cannot be used to exempt them from prosecution for alleged crimes committed in countries that are party to the ICC.
Neither Washington nor Kabul is obliged to comply. Failure to do so would be a blow to both nations.
In 2013, a US military court convicted Staff Sergeant Robert Bales to life in prison for the March 2012 killings of 16 civilians, including nine children, in the southern province of Kandahar.
Kabul signed a Bilateral Security Agreement (BSA) with Washington on September 30, 2014. The pact stipulated the conditions for any remaining US military forces in the nation.