By Susan Kendi
Efforts 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.
Although 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.
US hostilities against the ICC appear to have peaked after the court’s appeals chamber authorized the investigation into Afghanistan, over fears of exposure for the 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.
Six 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 the country.
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 detainees.”
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.
The US 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 of detainees.”
“… 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 the Afghanistan.
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.”
Powerful 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 government departments.
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.
US 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 efforts. Nearly 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 Taliban controls.
The US has operations in Iraq, Syria, Somalia, Niger and Yemen aimed at fighting Al-Qaeda.