By Marjorie Cohn
On November 3, the chief prosecutor of the International Criminal Court (ICC) informed the court’s Pre-Trial Chamber, “[T]here is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.”
In what Amnesty International’s Solomon Sacco called a “seminal moment for the ICC,” Chief Prosecutor Fatou Bensouda asked the court for authorization to commence an investigation that would focus on US military and CIA leaders, as well as Taliban and Afghan officials.
Bensouda wrote in a Nov. 14, 2016 report, that her preliminary examination revealed “a reasonable basis to believe” that “war crimes of torture and ill-treatment” had been committed “by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.”
The chief prosecutor noted the alleged crimes by the CIA and US armed forces “were not the abuses of a few isolated individuals,” but rather were “part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees.” …
In 2008, ABC News reported that Dick Cheney, Condoleezza Rice, Donald Rumsfeld, George Tenet and John Ashcroft met in the White House and micromanaged the torture of terrorism suspects by approving specific torture techniques such as waterboarding. George W. Bush admitted in his 2010 memoir that he authorized waterboarding. Cheney, Rice and John Yoo—author of the Office of Legal Council’s most egregious torture memos—have made similar admissions.
Were the ICC to pursue its investigation, the United States, which is not a party to the Rome Statute, would very likely refuse to relinquish US persons to the ICC. … However, under the Rome Statute, the ICC can take jurisdiction over a national or even a non-party state if he or she commits a crime in countries that are members. The US vehemently objects to this, but it’s nothing new. Under well-established principles of international law, the crimes being prosecuted in the ICC—genocide, war crimes, crimes against humanity—are crimes of universal jurisdiction. …
If a full investigation of US officials proceeds as requested, it “would send a clear signal to the Trump administration and other countries around the world that torture is categorically prohibited, even in times of war, and there will be consequences for authorizing and committing acts of torture,” said Jamil Dakwar, director of the ACLU’s Human Rights Program. …
—Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, deputy secretary general of the International Association of Democratic Lawyers. Her book Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, was published in November. This report is excerpted from Cohn’s Nov. 16 article at Truthout.
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