THE HAGUE (Reuters) – A lawyer for U.S. President Donald Trump argued at the International Criminal Court on Wednesday that prosecutors were wrong to seek an investigation into alleged war crimes in Afghanistan that could potentially implicate U.S. soldiers.
ICC judges in April rejected the request of prosecutor Fatou Bensouda to examine atrocities allegedly committed between 2003 and 2014, including alleged mass killings of civilians by the Taliban, as well as prisoner torture by Afghan authorities and to a lesser extent by U.S. forces and the CIA.
Trump lawyer Jay Sekulow, speaking as a “friend of the court” in the case, said that the prosecutor was wrong to “press ahead” with seeking to open an investigation when the United States is not a member of the court.
In addition, under the “complementarity principle”, the ICC has jurisdiction only when countries themselves are unwilling or unable to prosecute war crimes.
“The U.S. is demonstrably both willing and able to investigate its own cases, so on the basis of complementarity (this investigation) should be thrown out,” he said.
Trump has denounced the ICC, the world’s only permanent war crimes court, for its “broad, unaccountable, prosecutorial powers”. Washington revoked U.S. travel visas for ICC personnel in response to its work on Afghanistan.
Lawyers representing victims of the Afghanistan conflict on Wednesday urged the ICC to allow the investigation to proceed.
Lawyer Fergal Gaynor called the hearings “an historic day for accountability in Afghanistan”. The 82 victims he represented were “united” in wanting an investigation, he said.
In a previous decision in April, judges had rejected prosecutor Bensouda’s request to open a formal investigation, saying chances of a successful prosecution were small.
The prosecution has appealed against that decision and is arguing the case in three days of hearings before a panel of appeals judges in The Hague.
U.S. forces and other foreign troops entered Afghanistan in 2001 following the Sept. 11 attacks on the United States and overthrew the Taliban government, which had been protecting al Qaeda leader Osama bin Laden. In what has become the United States’ longest war, about 13,000 U.S. troops remain there.
In findings from a preliminary examination, which precedes an actual investigation to gather evidence, Bensouda said the Taliban and their affiliates were responsible for more than 17,000 civilian deaths until 2015 and there was a “reasonable basis” to believe they had committed crimes against humanity and war crime by murdering civilians.
The examination also found a “reasonable basis” to believe that Afghan authorities had committed widespread torture against detainees on a “large scale”.
It also found there was a “reasonable basis” to believe armed U.S. forces had “subjected at least 61 persons to torture” between May 2003 and December 2014. Separately, members of the U.S. Central Intelligence Agency “appear to have subjected at least 27 detained persons to torture in Afghanistan, Poland, Romania and Lithuania.”
Another legal representative of victims, Katherine Gallagher, who acts for two Guantanamo Bay detainees, stressed that so far no high-level U.S. official has been held accountable for alleged violations of the rules of war in Afghanistan or at CIA “black” sites.
“The opening of an investigation into the U.S. torture program would make clear that no one is above the law,” she told judges.
The ICC, which opened in 2002, has jurisdiction over war crimes, genocide and crimes against humanity if they have been committed by nationals of a signatory state or if they took place on the territory of one of its members. Afghanistan is a member, the United States is not.
The ICC is empowered to act only when a country is found to be unable or unwilling to examine misdeeds by its own military and leaders. It has struggled due to prosecutorial missteps and opposition, not least from the United States, Russia and China.
Reporting by Stephanie van den Berg and Anthony Deutsch; Writing by Toby Sterling. Editing by Angus MacSwan