U.S. personnel to be investigated for alleged war crimes in Afghanistan

The International Criminal Court will also look into possible crimes by Taliban militants and Afghan government forces.
Image: International Criminal Court in The Hague, Netherlands.
The International Criminal Court in The Hague, Netherlands.Peter Dejong / AP file

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By Saphora Smith and Abigail Williams

International Criminal Court appeals judges authorized Thursday an investigation into allegations of war crimes by United States military and intelligence personnel, Afghan forces and the Taliban in Afghanistan, in a case that has triggered a diplomatic backlash from Washington.

“The prosecutor is authorized to commence investigation in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003,” Judge Piotr Hofmański said, adding that other alleged crimes committed on the territory of other states, which are party to the ICC, but that are sufficiently linked to the armed conflict in Afghanistan could also be investigated in the period since July 1, 2002.

In late 2001, the U.S. toppled the Taliban after the group sheltered Osama bin Laden, the mastermind of the Sept. 11, 2001, terror attacks.

Secretary of State Mike Pompeo described the court's decision as a "truly breathtaking action by an unaccountable political institution, masquerading as a legal body."

"It is all the more reckless for this ruling to come just days after the United States signed a historic peace deal on Afghanistan — the best chance for peace in a generation," Pompeo said in the statement, referring to an agreement signed between the U.S. and the Taliban in the Gulf nation of Qatar on Saturday which paves the way for U.S. troops to leave Afghanistan.

A test trench dug by Physicians for Human Rights forensic experts in Dasht-e-Leili, Afghanistan, as part of an investigation at the mass grave in 2002.AP file

The decision by the Hague-based court overturns a ruling by a lower chamber last year that blocked the investigation concluding, among other reasons, that its chances of success and of prosecution were “extremely limited.”

The ruling by the lower chamber in April came after Pompeo announced that the U.S. would repeal or deny visas to International Criminal Court staff seeking to investigate Americans in Afghanistan or elsewhere.

"We are determined to protect the American and allied military and civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation," Pompeo said last March, announcing the decision.

The office of lead prosecutor Fatou Bensouda has said it has determined that there is a reasonable basis to believe that war crimes were committed by members of the U.S. armed forces in Afghanistan and by members of the CIA in secret detention facilities in Afghanistan and in other countries, particularly between the period 2003-2004.

It has also determined that there is a reasonable basis to believe that crimes against humanity and war crimes have been committed by the Taliban and their Haqqani network and that war crimes were committed by the Afghan National Security Forces.

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The court decision follows Saturday's ceremony during which the U.S. and the Taliban signed an agreement in which Washington committed to withdraw all forces from Afghanistan within 14 months in exchange for the Taliban cutting ties with any terrorist groups and entering into peace talks with Afghan government officials, representatives of the opposition and members of the civil society.

America’s war in Afghanistan — its longest — has raged for more than 18 years costing the lives of around 2,300 U.S. troops and wounding many thousands of others.

The conflict has inflicted a deadly toll on the Afghan people. Afghanistan currently tops the list of the world’s deadliest conflicts.

Since 2016, children have accounted for nearly a third of the estimated 11,000 civilian casualties every year in the conflict, according to Human Rights Watch.

Since the United Nations began systematically documenting the impact of the war on civilians in 2009, it has recorded more than 100,000 civilian casualties, including more than 35,000 killed and 65,000 injured.

Last year, more than 10,000 civilians were either killed or injured in the conflict for which the Taliban were responsible for nearly half, Afghan National Security Forces for 16 percent and international military forces for 8 percent, according to the U.N.

Associated Press contributed.