The Appeals Chamber of the International Criminal Court (ICC) on March 5 unanimously approved an investigation into allegations of war crimes committed by both sides in the Afghanistan conflict. The investigation will focus on "alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan." The Pre-Trial Chamber had rejected a request to open an investigation last year, but the prosecutor appealed based on Article 15 of the Rome Statute. The appeal attempts to resolve the apparent disparity between Article 15, mandating investigations when a prosecutor provides a "reasonable basis to proceed," and Article 53, which allows the court discretion in the interest of justice.The Appeals Chamber’s decision overturned the Pre-Trial Chamber's ruling on the grounds that the determination that the investigation "would not serve the interests of justice" and was an abuse of discretion.

The case names three primary parties as the focus of its investigation: "(i) the Taliban and affiliated groups for crimes against humanity and war crimes; (ii) the Afghan National Security Forces for war crimes; and (iii) the armed forces of the United States of America (the ‘United States’) and its Central Intelligence Agency (the ‘CIA’) for war crimes." There are a number of specific allegations for each of these parties.

From Jurist, March 5. Used with permission.

Note: It was US refusal to cooperate that caused the Pre-Trial Chamber to reject the investigation last year. Secretary of State Mike Pompeo responded to the Appeals Chamber ruling by stating that the Trump administration will take "all necessary measures" to shield US military and other personnel from a war crimes investigation. "This is a truly breathtaking action by an unaccountable political institution masquerading as a legal body," Pompeo said.

Prosecutor Fatou Bensouda said that the court had enough information to prove that US forces had "committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence" in Afghanistan in 2003 and 2004, and later in clandestine CIA facilities in Poland, Romania and Lithuania. (USA Today, NYT)