The chief prosecutor of the international criminal court is seeking approval to investigate allegations of war crimes in Afghanistan, including possible torture by US forces and the CIA.

If authorised, the investigation would also look at crimes allegedly committed by armed opposition groups, such as the Taliban, and Afghan government forces.

The ICC chief prosecutor, Fatou Bensouda, said in a report last year that the US military and the CIA may have committed war crimes by torturing detainees in Afghanistan between 2003 and 2014.

Her request comes after an unusually long preliminary process, which has dragged on for 10 years because of a lack of capacity at the court as well as lobbying from the Afghan government, which tried to block it. The Afghan president, Ashraf Ghani, met with Bensouda as late as September during the UN general assembly.

“For decades, the people of Afghanistan have endured the scourge of armed conflict,” Bensouda said. “Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the [ICC’s] Rome statute to commence an investigation have been met.”



Crimes to be investigated include 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.

Fatou Bensouda, chief prosecutor of the international criminal court, at the UN last year. Photograph: ddp USA/REX/Shutterstock

The ultimate focus, Bensouda said, would be “upon those most responsible for the most serious crimes”.

The ICC, established in 2002, is the world’s first permanent court set up to prosecute war crimes, crimes against humanity and genocide. It cannot investigate offences committed before that date and has jurisdiction to prosecute only individuals, not institutions.



The next step is for a pre-trial chamber of judges to consider the prosecutor’s request, which human rights observers in Kabul believe they will.

Human Rights Watchsaid: “Having documented egregious crimes in Afghanistan that have gone unpunished over many years, we hope this step will open a path to justice for countless victims there,.”

The Afghan government has been hesitant to receive ICC delegations, and has pardoned perpetrators of possible war crimes. In a 2008 law, parliament granted near blanket amnesty for crimes committed in the conflict from 1979 to 2001. It also promised amnesty to current combatants willing to lay down arms and reconcile.

By design, the legislation also benefited current members of the Afghan government and parliament.

Bensouda said her request for judicial authorisation would focus solely on crimes committed on Afghan territory since 1 May 2003 – the year Afghanistan signed the Rome statute – as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other countries.



Such countries could include Poland, Lithuania and Romania where the US has detained suspected members of al-Qaeda. The CIA has also run “black site” detention facilities inside Afghanistan during the conflict.

Bensouda’s report last year said the alleged US war crimes “were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees.”



Katherine Gallagher, a senior lawyer at the Center for Constitutional Rights (CCR) in New York, praised the step to hold US nationals from the military, the CIA or private contractors criminally accountable for the first time for crimes related to the Afghan war.

“This long overdue message that no one is above the law is particularly important now, as the Trump administration ramps up military machinations in Afghanistan and embraces the endless war with no plan in sight,” she said.

Last year, a spokeswoman for the US Department of State, said they did not believe an ICC investigation was “warranted or appropriate”.

Bill Clinton signed the Rome treaty that established the ICC, but President George W Bush renounced the signature, arguing that Americans would be unfairly prosecuted for political reasons.



But although the US is not a member of the court, Americans could still potentially face prosecution if they commit crimes within its jurisdiction in a country that is a member, such as Afghanistan, and are not prosecuted at home.