ACLU Comment on ICC Decision Not to Investigate U.S. for War Crimes in Afghanistan

NEW YORK — A pre-trial chamber of the International Criminal Court today decided not to authorize opening an investigation into alleged crimes against humanity and war crimes committed in the context of the armed conflict in Afghanistan including by U.S. military and intelligence forces. The ICC cited “the lack of cooperation that the Prosecutor has received and which is likely to go scarcer should an investigation be authorized hampering the chances of successful investigation and prosecution” as part of the main reason for not opening an investigation.

Jamil Dakwar, director of the American Civil Liberties Union’s Human Rights Program, issued the following statement in response to the ICC’s decision:

“It is outrageous that victims of war crimes are far less likely to get justice for well-documented atrocities because of the Trump administration’s authoritarian efforts to sabotage an investigation before it could even get started. The Trump administration’s bully tactics may have helped the United States skirt accountability this time, but the administration is playing a dangerous game that will inevitably come back to haunt the United States. No one except the world’s most brutal regimes win when we weaken and sabotage international institutions established to fight impunity and hold the human rights abusers accountable.”

The ICC’s decision comes a week after the United States revoked the entry visa of ICC Prosecutor Fatou Bensouda who requested to investigate possible war crimes and crimes against humanity in Afghanistan, weeks after Secretary of State Mike Pompeo threatened to revoke or deny visas to ICC personnel who attempt to investigate or prosecute such crimes, and only months after President Trump’s national security advisor John Bolton threatened to criminally prosecute and sanction ICC judges and prosecutors.

The ACLU represents Khaled El Masri, Suleiman Salim, and Mohamed Ben Soud — all of whom were detained and tortured in Afghanistan between 2003 and 2008 — whose cases would have been covered by the ICC investigation had it been authorized as requested by the Prosecutor in November 2017.

The ACLU last year also filed a FOIA request demanding the State Department and DOJ’s Office of Legal Counsel turn over all documents disclosing the legal basis for its threats to prosecute and sanction ICC judges and prosecutors.