An extraordinary event triggered the Mr. Bolton’s reaction. It has been reported that the ICC chief prosecutor, Fatou Bensouda, is seeking approval to investigate allegations of war crimes in Afghanistan, including possible torture by US forces and the CIA. In a statement on the ICC website, Ms Bensouda said the prosecutor’s office believed an investigation was required owing to “the gravity of the acts committed . . . and the absence of relevant national proceedings against those who appear to be most responsible for the most serious crimes within this situation”. The move is likely to provoke anger in Washington and the Bolton’s article is just the first salvo.
The next step is for a pre-trial chamber of judges to consider the prosecutor’s request. A report issued last year said that the US military and the CIA may have committed war crimes by torturing detainees in Afghanistan between 2003 and 2014. Pentagon spokesman Eric Pahon rejects the accusations. According to him, “Our view is clear: An ICC investigation with respect to US personnel would be wholly unwarranted and unjustified. More broadly, our overall assessment is that commencement of an ICC investigation will not serve the interests of either peace or justice in Afghanistan.”
The list includes crimes against humanity and war crimes such as murder, imprisonment, targeting humanitarian workers, use of child soldiers and carrying out executions without sentencing from the formal legal system.
The very fact that the US state agencies – the military and the CIA – are under an international investigation will be a severe blow against the US international reputation. Washington may protect its personnel from ICC prosecutors but the feeling of impunity may be gone. The US has not signed up to the ICC but its nationals can be charged with crimes committed in countries that are members.
President Bill Clinton signed the Rome Statute in 2000, but it has never been submitted for Senate ratification. In 2002, President George Bush informed the UN Secretary-General that the US no longer intended to ratify the Rome Statute, and that it did not recognize any obligation toward the Rome Statute. Actually, he “unsigned” the treaty before it took effect. But the Statute is ratified by the EU members. This fact bolsters the court’s legitimacy.
John Bolton expressed the gist of US position in a sentence. “The Trump administration should not respond to Ms. Bensouda in any way that acknowledges the ICC’s legitimacy,” he wrote. “Even merely contesting its jurisdiction risks drawing the US deeper into the quicksand.” So, America is a special case and its military can commit crimes with impunity.
Interestingly, the United States supported the idea of referring Syria to the ICC. It found good reasons to justify such a decision. Washington said Russia was preventing justice by vetoing the decision. The US backed France when it wanted Russia to be referred to the ICC for alleged crimes in Syria. But when it comes to the US itself, the attitude changes. The very mention of a possibility of ICC probe into US activities triggers anger. So, the Syrian military cannot commit “crimes” in their country but the US military can do it in Afghanistan and no ICC should stand in their way!
It’s worth noting that the preliminary investigation was launched in 2006 but nobody paid attention to this fact till Fatou Bensouda made public her position. It has lasted for 11 years. Why now? Looks like the idea to launch a formal investigation is a political decision. It is taking place at a time the cracks in the relationship between the US and the EU are starting to show. Actually, a scandal related to the “wrongdoings” of US military in Afghanistan serves the interests of those who advocate the creation of independent European defense deterrent (European Army). Germany greatly contributed into creating the Permanent Structured Cooperation (PESCO) in the area of defense security and defense policy. It is going to be signed by heads of state in mid-December. This is the first time ever EU member states legally bind themselves into joint projects as well as pledging to increase defense spending and contribute to rapid deployment. The US and the UK are kept out. Many politicians in Berlin and Paris will ask whether it is reasonable to have the US military accused of war crimes on European soil.
There is another question here. With all the reasons to reject the jurisdiction of the ICC, the evidence of US guilt is ample. Then why doesn’t the United States launch its own investigation of the alleged crimes in Afghanistan? There are multiple reports of human rights violations by US military in other places as well. Human rights in other countries have always been an issue high on the US agenda. But with all the evidence available, no investigation related to the activities of US servicemen and CIA operatives in Afghanistan is launched. The idea is not even discussed. Perhaps, this is a good example of what American exceptionalism means in practice.