ICC war crimes prosecutor seeks conflict investigation into Afghanistan

War crimes prosecutors said on Friday they will ask the International Criminal Court's judges for permission to launch a full-blown probe into crimes committed in war-torn Afghanistan, including possible offences committed by US troops.

The move is said to be The Hague-based court's most complex and politically controversial investigation to date and will be the first time possible crimes committed by US forces could be under the spotlight.  

"In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan," chief prosecutor Fatou Bensouda said in a statement.

"Following a meticulous preliminary examination... I have come to the conclusion that all legal criteria to commence an investigation has been met," the court's chief prosecutor said.

It will now be up to the ICC's judges "to decide whether I have satisfied them that the... legal criteria to authorise opening an investigation are fulfilled," Bensouda added.

In a lengthy probe first made public in 2007, the ICC has been looking at possible war crimes dating back to 2003 by the Taliban, Afghan government forces and international forces, including US troops.

'Inappropriate' probe

In what is likely to become a hot-potato issue, Bensouda has previously said US forces may have committed war crimes in Afghanistan by torturing prisoners in what may have been a deliberate policy.

She stressed that the Taliban militant group and the affiliated Haqqani network, Afghan government forces and US troops as well as the CIA all appeared to have carried out war crimes since the Taliban was ousted by a US-led invasion in 2001, which had followed the September 11 attacks that year.

Washington has previously rejected Bensouda's move, saying any probe into their actions would be "unwarranted and inappropriate."

The United States has not ratified the ICC's founding Rome Statute, so even if US soldiers were to be charged with war crimes it is unlikely they will end up in the dock at the ICC.

'Not isolated abuses' 

War crimes allegedly carried out by US forces were "not the abuses of a few isolated individuals," Bensouda insisted in her annual report to the ICC's 124 member states – including Afghanistan.

Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract "actionable intelligence' from detainees," she said.

Bensouda also blamed the Taliban and its allies for the deaths of some 17,000 civilians from 2007 to December 2015 in a brutal insurgency with "numerous attacks" on schools, hospitals and mosques.

Any prosecution of Afghan forces could be further complicated by an amnesty law passed by the Afghan parliament which came into force in 2009. 

The ICC itself – set up in 2002 as the world's only independent tribunal to try the worst crimes – bases its prosecutions on a complementarity principle, meaning it will only step in if national authorities are unable or unwilling to pursue perpetrators themselves.

Kabul recognised the court's jurisdiction in February 2003, authorising Bensouda's predecessor Luis Moreno-Ocampo to probe atrocities on its territory.

 'Seminal moment' 

Rights groups welcomed the move on Friday.

"Generations have suffered from the international crimes that have been committed in Afghanistan, where there is neither peace nor any genuine accountability process, including before the domestic courts," said Guissou Jahangiri, deputy president of the International Federation for Human Rights.

"Now is the time for the ICC to step in," she said.

"This is a seminal moment for the ICC," added Amnesty International's head of International Justice Solomon Sacco.

"Justice for victims of the Afghanistan conflict has taken far too long to arrive, but investigations like this one are the reason the Court was set up – to provide a last chance for justice when states parties have failed to deliver it," he said.