By Susan Kendi
to bring to justice Americans suspected of torture in Afghanistan continue to
meet resistance as the United States government deploys travel sanctions,
financial cuts and bullying tactics to shield its citizens from investigations.
Days after US Secretary of State Michael R. Pompeo threatened to deny entry visas to two International Criminal Court officials, Phakiso Mochochoko and Sam Sashan Shoamanesh, for their role in investigations into US citizens’ activities in Afghanistan, he announced a $1 billion aid cut in aid to the country over failure by the government to close a deal with its rivals, the Taliban.
the US has not ratified the Rome Statute, the treaty that creates the ICC,
Afghanistan is a member and therefore within the court’s jurisdiction.
The decision to target Mochochoko, the head of the jurisdiction, international cooperation division in the Office of the Prosecutor,Shoamanesh, the Prosecutor’s chef de cabinet, and their families, escalates the US visa ban on Prosecutor Fatou Bensouda two years ago. The US made good its threat to cancel Bensouda’s visa after she requested authorization to investigate alleged war crimes and crimes against humanity in Afghanistan.
US national security adviser John Bolton had said in 2018 that ICC judges and
officials would face criminal charges, arrests and economic sanctions if they
dared charge any American.
hostilities against the ICC appear to have peaked after the court’s appeals
chamber authorized the investigation into Afghanistan, over fears of exposure
US Central Intelligence Agency’s (CIA) illegal torture programme under which
interrogators allegedly tortured detainees within Afghanistan and in “black
sites” in Romania, Lithuania and Poland.
Interrogators in detention
allegedly used techniques that included sexual violence such as “rectal
rehydration” or “rectal feeding” applied with excessive force, severe
isolation, waterboarding, hooding under special conditions, threats of torture
and the use of dogs to induce fear. Additionally, stress positions, isolation
and sensory deprivation, exposure to extreme hot or cold temperatures, exposure to
loud music and bright or flashing lights, prolonged sleep deprivation and food deprivation and deliberately
placing detainees in cramped conditions such as boxes to restrict their physical movement.
According to the ICC prosecution
request, victims of these
techniques have exhibited behavioural and psychological symptoms, which include
“visions, paranoia, insomnia,” and attempts at self-mutilation.
former US officials have criticised the attack on the court saying that it undermines
America’s commitment to the rule of law, even as leading international civil society organisations
such as the International Federation for Human Rights (FIDH), World Federalist Movement –
Institute for Global Policy (WFM-IGP), Human Rights Watch and Amnesty
International have challenged states parties to the Rome Statute to openly
support the ICC in the face of US attacks.
“States Parties’ failure to adequately respond to the blatant
attempt to dismantle the work of generations to build a global system for
accountability and the rule of law is, simply put, embarrassing. States’
deafening silence on the matter could pave the way for a return to the rule of
the jungle where the powerful enjoy impunity while those who lack it are denied
justice and redress,” FIDH said in a statement.
US pressure on the ICC appeared to ease off after the court’s
pre-trial chamber declined to authorize the investigation into Afghanistan “in
the interests of justice”, provoking widespread consternation. During the hearings for the appeal against the pre-trial
chamber’s decision in December 2019, US President Donald Trump sent his
personal lawyer, Jay Alan Sekulow, who argued that the US was both willing and
able to investigate its own cases.
“It is not in the interests
of justice to ignore customary international norms. It is not in the
interests of justice to override explicit agreements between sovereign states
and it is not in the interest of justice to waste the court’s resources while
ignoring the reality of principled non-cooperation,” said Sekulow.
Bensouda, in her November
20, 2017 request for authorisation to start an investigation in
Afghanistan, provided information to suggest that there was a reasonable basis
to believe that members of the US armed forces and the CIA committed war crimes
amounting to torture or cruel treatment in relation to the armed conflict in
It is alleged that the CIA began a
secret detention programmes with the assistance of outside contractors and
violated US treaty obligations, law and values by repeatedly, and over extended
periods of time, using a series of cruel interrogation techniques for the
purpose of obtaining information.
The US Army Field Manual
34-52 on intelligence interrogation (1992) does not allow for the use of
physical contact, deprivation of sleep or withholding basic needs such as food,
water or clothing.
The CIA operated detention
sites, commonly referred to “black sites”, on the territory of Afghanistan and
other state parties of the Rome Statute Poland, Romania and Lithuania. The four
detention facilities on the territory of Afghanistan were Gray, Orange, Brown
and Cobalt — also known as the Salt Pit. The detention facility in Stare
Kiejkuty, Poland, was known as Blue, the one in Romania was known as Black
while the one in Antaviliai, Lithuania was referred to as Violet.
The US Senate Committee on Armed Services in their 18-month
inquiry found that President George W Bush’s administration had contributed to
abuse through his decision turning down the humane treatment protection of
detainees, which are founded on the Geneva Conventions.
“The abuse of detainees in US custody cannot simply be
attributed to the actions of ‘a few bad apples’ acting on their own,” the
report said. “The fact is that senior officials in the United States government
solicited information on how to use aggressive techniques, redefined the law to
create the appearance of their legality, and authorized their use against
Former US President Barack Obama acknowledged that US forces
used torture as an interrogation technique and ordered the closure of all CIA
black sites established during the Bush administration.
Senate Intelligence Committee in a 2014 summarised report documents the abuses and wrongs committed
by the US between 2001 and 2009. The report reveals the poor and harsh
conditions of the CIA detention sites and the lies they told the justice
department regarding the systematic large-scale use of torture.
The report came two years
after then US Attorney General Michael Mukasey announced the closure of criminal investigations with no
charges initiated into the death of the two detainees who were alleged to have
died while in CIA custody.
“Based on the fully
developed factual record concerning the two deaths, the Department has declined
prosecution because the admissible evidence would not be sufficient to obtain
and sustain a conviction beyond a reasonable doubt,” said Mukasey.
The scope of the
investigation was limited to whether there was a violation of federal laws in
connection with the interrogation of detainees, and whether it was intentional.
According to a 153-page Human Rights Watch report, No more excuses: A roadmap to justice for
CIA torture, issued on January 1, 2015, there was no evidence that showed
that the US investigators questioned the victims of CIA torture.
The US Department of Justice in 2009 opened an investigation
into 101 cases linked to abuses by the CIA. This came a year after Mukasey
handpicked Assistant US Attorney John Durham to investigate the destruction of
interrogation videotapes by the CIA.
In his statement, he made clear that the Department of Justice would not
prosecute any US national that acted in “good faith and within the scope of the
legal guidance given by the Office of Legal Counsel regarding the interrogation
“… While this Department
will follow its obligation to take this preliminary step to examine possible
violations of law, we will not allow our important work of keeping the American
people safe to be sidetracked,” said Mukasey.
In a 2015 presentation at the United Nations Committee
against Torture, the US said American service members had initiated 70
investigations into the allegations leading to trial by court martial.
So far, there has not been a provision on the time period
charged and no public information that can help gauge the effectiveness of the
investigations, prosecutions and sentences.
In December 2019, the Washington Post acquired 2,000 pages of
confidential US government documents revealing that senior American officials
lied about progress in the Afghanistan war and analyzing the root failures of
Before the establishment of the ICC as the court of last resort in the 1990s, US president Bill Clinton’s administration sought to grant power to the United Nations Security Council to screen cases. If this power had been granted in the Rome Statute, it would have meant that the US and other permanent UN Security Council members would be able to veto cases they opposed. This request was rejected because countries felt that this would be an unequal measure of justice.
The current article 16 of the court’s statute, as it was adopted as a compromise formula in Rome in 1998, only allows the Security Council to stop an ICC investigation or prosecution for one (renewable) year, and only if none of the permanent council members opposes this decision.
According to a non-governmental policy watchdog, Global
Policy Forum, when the administration of President George
Bush took office in 2001 the US twisted the arms of military allies by
negotiating bilateral agreements with about 100 countries, including
Afghanistan, to shield their US nationals from prosecution by the ICC as the
agreement prohibits the surrender to the court of last resort.
President Bush threatened to withdrawal military assistance,
and to end economic aid, among other measures, to ensure that countries kept
their part of the agreement.
The first US
Ambassador-at-Large for War Crimes Issues and a chief negotiator at the Rome
Statute drafting conference, David J Scheffer, in the September 20, 2002 Wall
Street Journal Europe titled “The
original intent of Article 98 agreements” battled President Bush’s move to
insulate US nationals from the ICC.
“The original intent of Article
98 [of the Rome
Statute] agreements was to ensure that Status of Forces Agreements (SOFAs)
between the United States and scores of countries would not be compromised and
that Americans on official duty could be specially covered by agreements that
fit Article 98’s terms … The Bush administration overreaches if it attempts, with
Article 98 agreements, to immunize any US national living abroad or traveling
for any reason from surrender to the court and to blanket the entire world with
such agreements. The negotiating objective was never to protect American
mercenaries or any other citizen engaged in unofficial actions.”
countries and their allies have in the past evaded justice by not ratifying the
Rome statute and blocking referrals by the UN Security Council, with the US
being notorious. The George W. Bush and Donald Trump have actively tried to
halt ICC investigations.
US positions on international justice around the world have
been contradictory. In 2005, when the United Nations Security Council referred
the situation in Darfur, Sudan, to the ICC, the US did not veto the decision
but it stepped in to veto a similar referral of the situation in Libya in 2011.
The US has been supportive of efforts to capture, surrender and transfer
suspects wanted at the ICC such as Congolese warlord Bosco Ntaganda, and
Uganda’s Lord Resistance Army commander Dominic Ongwen.
The US Congress increased the State Department’s Rewards for
Justice Program in 2013 to ensure
whistleblowers receive a token for information they provide that would ease the
arrest of individuals wanted by international courts and tribunals.
The 18-year-old Afghanistan war is the longest in the US
history, and has claimed the lives of 2,300 American soldiers and wounded over
20,000 others. In 2019, President Ghani revealed that over
45,000 Afghan security forces have lost their lives since he got into power in
2014.The number of international casualties was less than 72.
A February 28, 2020 BBC report shows
that the US has expended $822bn in Afghanistan: $778bn on military
expenditure and $44b on reconstruction
projects since the Afghanistan war began. The amount excludes money the country
spent in Pakistan, which is used as a US base for Afghan operations, costs
spent for war veterans’ care and any war-related activities by other US
The US invaded Afghanistan after the September 11, 2001
attacks on the Twin Towers in New York with the aim of flushing out the terror
organisation Al-Qaeda, and denying them a safe base of operations by removing
the Taliban from power. On February 29, 2020 the US and the Taliban entered into a
pact seeking to end the war in Afghanistan. The agreement requires the US to
withdraw its soldiers over the next 14 months and that the Afghan government
and Taliban to begin direct talks.
desperation to reach closure in Afghanistan showed on Monday, March
23, 2020, when the US announced a $1 billion
cut into the 2020 Afghanistan Aid package, with threats to cut a further $1
billion in 2021, review their
projects and programs and reconsider their financial contribution to future
donor conferences after Afghani president Ashraf Ghani failed to reach
an agreement with his longtime rival to form a new government.
“This leadership failure
poses a direct threat to US national interests. Effective immediately, the US
government will initiate a review of the scope of our cooperation with
Afghanistan,” said Pompei, adding that the failure was jeopardising US peace
two decades since Afghanistan became a battleground for international powers
and a breeding ground for extremist groups, the pact seeks to prevent the Al
Qaeda and any other terrorist groups from working in the territory that the
The US has
operations in Iraq, Syria, Somalia, Niger and Yemen aimed at fighting Al-Qaeda.