Just Security is pleased to launch this online symposium–spearheaded by Professor Laura Dickinson–which is focused on the International Criminal Court’s (ICC) probe in Afghanistan and its implications for the United States.
As has been discussed here on Just Security, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has sought permission to open an investigation into international crimes committed in connection with the war in Afghanistan. The OTP’s filing (dated November 20, 2017) indicates that the proposed investigation would cover crimes committed by members of the Taliban, U.S. personnel (representing the Department of Defense and the Central Intelligence Agency), and Afghan National Security Forces and affiliated armed groups. The investigation would involve alleged crimes committed on Afghan soil but also on the territories of certain ICC member countries that provided stopover points used during the “extraordinary renditions” of presumed terrorists from their place of capture to various detention centers and “black sites” around the world. It appears that crimes committed by the then-Northern Alliance, such as the alleged Death Convoys in which captured Taliban fighters suffocated to death in droves, will fall outside the ICC’s temporal jurisdiction.
For crimes committed in Afghanistan, the ICC’s temporal jurisdiction starts on May 1, 2003. The OTP has argued that the ICC can prosecute alleged crimes committed prior to that date on the territories of other European ICC member states so long as such crimes were committed “in the context of and associated with the armed conflict in Afghanistan” such that “they are sufficiently linked to and fall within the parameters of” the Afghanistan situation. This expansive approach implicates Poland, Lithuania, and Romania, which—as found by the European Court of Human Rights—all played host to secret detention facilities where individuals were mistreated. Most of the crimes involving U.S. personnel are likely to trace back to the early days of Operation Enduring Freedom (OEF) and the George W. Bush Administration, although serious allegations against U.S. personnel deployed to Afghanistan have emerged in later years.