Daily Times

Howard Zinn once said, “Small acts, when multiplied by millions of people, can transform the world.” The prosecutor for the International Criminal Court (ICC), Fatou Bensouda has decided to request judicial authorisation to open in investigation into crimes that have been committed during the armed conflict in Afghanistan.

She has concluded that all the legal criterias required under the Rome Statute, the statute that established the ICC, have been met to commence an investigation. The request, due to the limited temporal scope of the Court’s jurisdiction, will focus on war crimes and crimes against humanity allegedly committed in Afghanistan since May 2003. The authorisation sought will also focus on war crimes committed since July 1, 2002 on the territories of other countries that are parties to the Rome Statute.

Given the authorisation, Bensouda said that her “Office will investigate, within its mandate and means, in an independent, impartial and objective way, crimes within the Court’s jurisdiction allegedly committed by any party to the armed conflict”. The words ‘any party’ above are unprecedented in that the United States is a party to the conflict. This could potentially ensnare the Americans.

Bensouda’s statement doesn’t name any party. However, in a 2016 report by her, she specifically said that there was ‘reasonable basis’ to believe that (1) war crimes and crimes against humanity have been committed by the Taliban and the Haqqani Network, (2) war crimes of torture and related ill-treatment committed by the Afghan government forces, national police, and Afghan intelligence agency, (3) war crimes of torture and related ill-treatment by the US military and the CIA mainly in the 2003-2004 period and allegedly to have continued in some cases until 2014.

Responsibility to protect (R2P) and other innovative forms of humanitarian interventions are always used before attacking another country. This is done so that the invasion or attack is done in order to protect the native people from being subjected to the atrocities of their own government

The United States signed the Rome Statute under Clinton but didn’t ratify it. Afghanistan is a member state. While the United States is not a member state, the court’s jurisdiction covers crimes committed on a member state’s territory regardless of the nationality of the perpetrator. Therefore, technically the court can cover the crimes committed by US forces in Afghanistan. Bensouda’s 2016 report stated that there is a ‘reasonable basis to believe’ that the US forces in Afghanistan subjected ‘at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1st May 2003 and 31 December 2014.’ The report also puts the blame for ‘more than 17,000 civilian deaths in the period between January 2007 and December 2015’ on the Taliban and other anti-government armed groups.

This is a fearless effort. However, one must take the possibility of Americans being prosecuted by an international court especially the ICC with a grain of salt. It is very difficult if not impossible because there are legal barriers to prosecuting American citizens at the ICC. President Bush in August 2002 signed into law the American Service members Protection Act (APSA). The law authorises the US president to use military force to liberate any American citizen or a citizen of an American allied country being held by the court, which is located in The Hague. The provision has been dubbed as ‘Hague Invasion Clause’. Given the existence of this law, the possibility of Fatou Bensouda achieving any justice would be less than the possibility of her getting Netherland invaded.

It’s a bit of a stretch but within the realm of possibility. With an American president desperate for any side show to shift the focus off of the investigation by Bob Mueller III into his campaign officials’ contacts with the Russians, invasion or the talk of invading a European country would provide an absolute distraction. Trump through the decades has honed his skills at being a clown.

Responsibility to protect (R2P) and other innovative forms of humanitarian interventions are always used before attacking another country. This is done so that the invasion or attack is done in order to protect the native people from being subjected to the atrocities of their own government.

It is because of this that big powers use that justification to always subject other countries’ people to atrocities. US and UK, except on occasion, do not kill their own people with drone strikes, chemical weapons, cluster bombs, and so forth. Therefore, the argument always has to be that ‘that leader is killing his own people’ so we are going to defend the defenseless population. The ICC and other such world courts provide an opportunity to punish the bigger killers who kill in the name of all positive things known to mankind.

Nevertheless, Bensouda’s efforts are positive in many ways. It would buy some credibility for the court as it is always criticised for only punishing poor African countries’ leaders and avoided alleging the leaders of strong countries who are far bigger criminals. More importantly, the transition from something unthinkable to it becoming doable requires fearless and unconventional actions. This could be the first step of many tiny baby steps toward achieving a just world where all people regardless of their citizenship would be punished for their crimes.

There is a chance that death for the Afghans who are Orwell’s ‘Unpeople’ and impunity for the Americans will come after a due process of law. The difference wouldn’t be in the result but rather in the process, and process is the only thing that defines the difference between the bearded killers and the clean shaven killers who asked ‘who do they hate us’?

The writer is currently a PhD candidate at the University of Houston, and he teaches political science at the Lone Star College in Houston

Published in Daily Times, November 8^th 2017.