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Hague Prosecutor Seeks to Pursue Afghan Case That Could Ensnare Americans

The International Criminal Court's prosecutor said Friday that she would request permission to open an Afghanistan investigation, a step that may lead to the court's first indictments of Americans for war crimes.

The prosecutor, Fatou Bensouda, has been collecting information on the war in Afghanistan for years. She has suggested before that she has evidence for a prosecution – not only of allegations of atrocities committed by combatants in Afghanistan, including the Taliban, the Afghan armed forces and the United States military, but of related crimes in other countries where C.I.A. operatives once held and tortured Afghan prisoners.

Ms. Bensouda said she would ask the judges in the court, which is based in The Hague, for authorization to pursue a formal investigation. If they agree, the Afghanistan investigation and any resulting indictments could pose a legal test for the United States – which does not recognize the court's jurisdiction – to cooperate with it, especially if any defendants are American.

"In due course, I will file my request for judicial authorization to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan," Ms. Bensouda said in a statement.

Should the judges grant her request, she said, her office will conduct an independent and impartial investigation into accusations of atrocities "committed by any party to the armed conflict."

It is unclear precisely when, or even whether, the judges will grant her request. Nor has Ms. Bensouda disclosed exactly what supporting material she will present to them.

But lawyers and international justice experts who have followed the court expressed little doubt that Ms. Bensouda has evidence that could implicate Americans.

They noted that in a report by Ms. Bensouda last November summarizing her preliminary examination of possible crimes related to the Afghanistan conflict, she said members of the United States armed forces "appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity" in the country between May 2003 and December of 2014.

The report also said members of the C.I.A. "appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape," not only in Afghanistan but at sites in Poland, Romania and Lithuania, between December 2002 and March 2008.

The court was created in 2002 for victims of war crimes, crimes against humanity and genocide, particularly in countries that lack the means or willingness to prosecute these crimes.

The United States is not among the 123 countries that are parties to the Rome Statute, the treaty that established the court and that gives it jurisdiction in those countries.

But Afghanistan, Poland, Romania and Lithuania are all parties. That strengthens Ms. Bensouda's standing to prosecute anyone suspected of having committed Afghanistan-related torture in those countries, including Americans.

Richard Dicker, director of the International Justice Program at Human Rights Watch, said that if Ms. Bensouda is successful, "it will be the first time that, potentially, U.S. citizens could be subject to the reach of this court."

Nicholas Kaufman, a former prosecutor at the court who is now a lawyer representing some of its defendants, said Ms. Bensouda also could potentially break new ground by pursuing alleged cases of torture committed outside Afghanistan.

"It's probably the most interesting aspect of today's announcement, because it will be the first time the United States is under the microscope," he said. "This is probably going to raise the hackles of your president."

There was no immediate response to Ms. Bensouda's statement from the Trump administration.

But the idea that American citizens might face prosecution in the court on torture charges was not expected to be well received by President Trump, who has said he believes torture can be effective.

The C.I.A.'s harsh interrogation methods and so-called black-site secret prisons in other countries, part of the American war against Al Qaeda and affiliated groups after the Sept. 11, 2001 attacks, were discontinued under President Barack Obama.

Soon after taking office in January, Mr. Trump announced a review that could clear the way for the C.I.A. to revive some aspects of the policy his predecessor had stopped.

Some legal rights advocates said Ms. Bensouda's intentions, should they succeed, would send a powerful counter-message. Jamil Dakwar, director of the Human Rights Program at the American Civil Liberties Union, said he was "very encouraged" by her announcement.

"If authorized, the full investigation would send a clear signal to the Trump administration and other countries around the world that torture is categorically prohibited, even in times of war, and there will be consequences for authorizing and committing acts of torture," Mr. Dakwar said.

Few dispute the Afghanistan government's inability to prosecute war crimes and other abuses against civilians in the 16-year-old conflict. Afghanistan's Independent Human Rights Commission called on the international court in August to start an investigation.

But Nader Nadery, a senior adviser to President Ashraf Ghani, said on Saturday that the government had tried to show the court that it had made reforms to its judicial system and penal code. "The Afghan government fully respects the independence of the office of the prosector, but with the measures we have taken so far, we would have preferred that our domestic system be further enabled to deal with these obligations," he said.

Mr. Nadery said he hoped the court would focus on crimes committed by the Taliban, whose leadership lives in Pakistan.

Up until now, the court has focused almost exclusively on cases in African countries, which has generated a considerable backlash in Africa.

Last week, Burundi, where leaders had faced a possible prosecution in the court for a range of crimes, became the first country to withdraw from it.

Some lawyers speculated that Ms. Bensouda's timing on Afghanistan was meant partly to demonstrate to Africa that she is also focusing her attention elsewhere.

"This is the I.C.C. turning away from Africa," Mr. Kaufman said. "It's coincidentally aesthetic that she did it a week after not pursuing a case against Burundi."

[Source: By Rick Gladstone and Marlise Simons, The New York Times, The Hague, 03Nov17]

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