Is the ICC Investigating Crimes by U.S. Forces in Afghanistan?

Last spring, U.S. officials got a rude surprise from the Netherlands. It came in the form of a letter from Fatou Bensouda, the chief prosecutor of the International Criminal Court (ICC). The subject was Afghanistan, and the letter described evidence that U.S. personnel had abused more than two dozen detainees held in that country, mostly between 2003 and 2006. The prosecutor invited the U.S. government to provide information to the court about those cases and its broader detention practices in Afghanistan.

The correspondence from The Hague set off alarm bells in Washington. With thousands of troops deployed in Afghanistan, neither Washington nor its leading NATO allies have had any desire to see the court involved there. A few diplomats from NATO states discouraged the prosecutor from pursuing a full investigation, but most simply hoped that the court inquiry wouldn’t move forward. U.S. officials had good reason for confidence that it would not.

One former U.S. official who spoke about Afghanistan with the then-prosecutor, Luis Moreno Ocampo, in 2009 and 2010 got the impression that the court’s inquiry was a "box-checking exercise" — designed in part to show that an institution often criticized for its exclusive focus on Africa was at least interested in situations outside the continent.

The 2013 letter represented the first concrete indication the court was scrutinizing possible American transgressions on Afghan soil. State Department, Defense Department, and White House officials hurriedly conferred about how to respond. Within weeks, three U.S. officials were on a plane to The Hague. At ICC headquarters, they met with the deputy prosecutor, veteran Canadian prosecutor James Stewart, and several of his senior staff. Individuals familiar with the meeting recall that the U.S. delegation urged the court not to publish the allegations, even in preliminary form. They warned that the world would see any ICC mention of possible American war crimes as evidence of guilt, even if the court never brought a formal case. (ICC officials would not comment on the meeting other than to note that they routinely have confidential meetings with states about potential investigations.)

Several months after that meeting, the prosecutor’s office released a public update on its preliminary investigation in Afghanistan. It focused heavily on crimes by anti-government forces in Afghanistan. All the specific cases that the court had spoken about with U.S. officials were absent, and the report did not even mention the United States by name. But the prosecutor’s spare language makes clear that her office remains quite interested in U.S. conduct in Afghanistan and whether it has done enough to ensure accountability for abuses. For their part, U.S. officials have been eager to keep the ongoing dialogue with the court quiet. (National Security Council spokesperson Laura Lucas Magnuson wrote in an email: "We are aware that the ICC’s Office of the Prosecutor is conducting a preliminary examination of the situation in Afghanistan and that they have reported on it publicly. We have no further comment on those activities." State Department officials did not respond to requests for comment.)

It’s not surprising that the United States is being tight-lipped. The prosecutor’s probe in Afghanistan is awkward for the Obama administration, which has steadily improved relations with a court that conservatives have long warned is a threat to American interests. In 2011, the United States voted for a Security Council referral of the conflict in Libya to the ICC, the first time Washington had done so (in 2005, the Bush administration abstained on a Security Council referral of Sudan to the court). Last year, the United States helped facilitate the transfer to The Hague of a Congolese warlord who had sought shelter in a U.S. embassy. And just last week, FP‘s Colum Lynch reported that the United States is now prepared to vote for a referral of Syrian crimes to the ICC.

The good public vibrations between Washington and The Hague have been the product of court activity that has mostly (although certainly not always) aligned with the administration’s larger goals, without unnerving the superpower. I argued in a recent book that the court’s first decade has featured an accommodation between the court and the powerful countries, including the United States, that have been most anxious about its powers. Since the court began operating in July 2002, it has mostly steered clear of investigations that would entangle it directly with the most powerful states. It hasn’t touched the Russia-Georgia conflict or the situation in Palestine. Until recently, Afghanistan appeared to be in the same category of politically sensitive cases the court would prefer to leave alone.

The prosecutor’s office appears to be most interested in whether the abuses that U.S. forces committed in Iraq and at other detention facilities occurred in Afghanistan as well. (Because Afghanistan is already an ICC member, the court has broad juridiction to investigate crimes committed on Afghan territory — even those by foreign nationals.) Prominent human rights organizations have argued that a pattern of abusive practices — and impunity for abuses that did occur — migrated from Guantanamo and Iraq to Afghanistan. Human Rights Watch senior researcher Patricia Grossman told me that there are a "large number of cases of U.S. involvement in detainee abuse and homicide [in Afghanistan] — many of which went uninvestigated, unprosecuted, or unpunished."

The ICC does not appear to be satisfied yet with what it has heard from Washington. In her November 2013 report, the prosecutor suggested that she continues to explore whether a U.S. policy of detainee abuse existed. She wrote that her office continues to pursue "information to determine whether there is any reasonable basis to believe any such alleged acts, which could amount to torture or humiliating and degrading treatment, may have been committed as part of a policy." That question is extraordinarily sensitive for the United States. A finding that there was a U.S. government "policy" of facilitating or condoning abuse could implicate not just commanders who were on the ground but, in theory, more senior officials.

For all the heartburn the ICC probe is causing in Washington, the chances that the court will ever prosecute U.S. soldiers or officials remain slim. If the United States can show that it has genuinely investigated the relevant cases on its own, it can argue that the ICC’s "complementarity" doctrine — which says that national courts should prosecute relevant crimes whenever possible — precludes court action. Even if the United States can’t demonstrate that it has investigated the specific cases the ICC is interested in, there’s another important barrier to ICC action. The court is designed to consider the most serious crimes, and its charter encourages the prosecutor to investigate and prosecute war crimes when they’ve been committed on a large scale. Even if the allegations against the United States are well founded, it’s debatable whether they cross that threshold.

It could be that the prosecutor’s office is hoping to replicate the experience it had with the British government over allegations against its forces in Iraq. Because Britain j

oined the ICC in 2002, the court could examine allegations against its forces even while U.S. behavior in Iraq was beyond its reach. (The United States signed the Rome Statute establishing the court at the tail end of the Clinton administration, but the Bush administration "unsigned" it soon after taking office.) Between 2004 and early 2006, the prosecutor examined several instances of alleged detainee abuse by British troops in southern Iraq but ultimately decided not to launch a full investigation. In a letter closing that inquiry, the prosecutor noted that the number of possible crimes by British forces was tiny compared to many other situations around the world. The prosecutor’s decision was a deft compromise: it signaled a willingness to look at the behavior of even powerful states without creating a direct confrontation.

But the relatively painless British experience of ICC scrutiny is less comforting to the United States than it might have been just a few days ago. Activists have recently urged the court to consider new evidence about British abuses in Iraq, and the prosecutor’s office this week announced that it would reopen its preliminary inquiry. While flatly rejecting the allegations, Britain’s attorney general reiterated his country’s strong support for the ICC and pledged cooperation.

Britain’s stiff upper lip in the face of ICC scrutiny is unlikely to prevail in Washington, particularly among the committed court skeptics on Capitol Hill. Unlike the British, most U.S. politicians have not digested the theoretical possibility that an international court could prosecute troops and officials. In 2002, Congress overwhelmingly approved legislation that forbade several forms of U.S. support to the court and empowered the president to use "all means necessary" to free any Americans held by the court (Hillary Clinton joined most Democrats in supporting the measure). The recent thaw in U.S.-ICC relations has been possible in large part because the possibility of a direct clash between The Hague and Washington seemed remote. But the tense recent exchanges over Afghanistan are a reminder that the court and the sovereignty-conscious superpower may not always get along as well as they have recently.