On November 3, the chief prosecutor of the International Criminal Court (ICC) informed the court’s Pre-Trial Chamber, “[T]here is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.”
In what Amnesty International’s Solomon Sacco called a “seminal moment for the ICC,” Chief Prosecutor Fatou Bensouda asked the court for authorization to commence an investigation that would focus on US military and CIA leaders, as well as Taliban and Afghan officials.
Bensouda wrote in a November 14, 2016, report that her preliminary examination revealed “a reasonable basis to believe” the “war crimes of torture and ill-treatment” had been committed “by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.”
The chief prosecutor noted the alleged crimes by the CIA and US armed forces “were not the abuses of a few isolated individuals,” but rather were “part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees.” She added there was “reason to believe” that crimes were “committed in the furtherance of a policy or policies … which would support US objectives in the conflict of Afghanistan.”
In accordance with its Rome Statute, the ICC only asserts jurisdiction over people whose home country is unwilling or unable to bring them to justice. In explaining why this war crimes investigation falls under the ICC’s jurisdiction, Bensouda wrote that the US Department of Justice investigations regarding ill-treatment of 101 detainees were limited to whether interrogation techniques used by CIA interrogators were unauthorized and violated criminal statutes. The US Attorney General (AG) said the Justice Department would not prosecute anyone who acted in good faith and within the guidance provided by the Office of Legal Counsel (OLC).
The AG investigated only two incidents and found the evidence insufficient to obtain convictions. In one case, Gul Rahman froze to death after being stripped and shackled to a cold cement floor in the secret Afghan prison known as the Salt Pit. In the other, Manadel al-Jamadi died in Iraq’s Abu Ghraib prison after he was suspended from the ceiling by his wrists which were bound behind his back. Former military policeman Tony Diaz, who witnessed al-Jamadi’s torture, said that blood gushed from his mouth like “a faucet had turned on” when he was lowered to the ground. A military autopsy concluded that al-Jamadi’s death was a homicide. However, the AG ultimately refused to prosecute the Bush officials responsible for the torture and deaths of those two men.
In 2008, ABC News reported that Dick Cheney, Condoleezza Rice, Donald Rumsfeld, George Tenet and John Ashcroft met in the White House and micromanaged the torture of terrorism suspects by approving specific torture techniques such as waterboarding. George W. Bush admitted in his 2010 memoir that he authorized waterboarding. Cheney, Rice and John Yoo – author of the OLC’s most egregious torture memos – have made similar admissions.
Were the ICC to pursue its investigation, the United States, which is not a party to the Rome Statute, would very likely refuse to relinquish any US person to the ICC. During the Bush administration, Congress passed the American Service-Members Protection Act, which says if US persons are sent to the ICC in The Hague, the US military can forcibly extract them. The act also restricts US cooperation with the ICC and prohibits military assistance to states parties to the Rome Statute unless they sign bilateral immunity agreements with the US.
States which sign these “Article 98” agreements — referring to the section of the Rome Statute that addresses treaties between countries — pledge not to hand over US nationals to the ICC. The United States has reportedly extracted those agreements from over 100 countries — primarily small nations, or fragile democracies with weak economies. Moreover, the US government has withdrawn military aid from several nations that refused to be coerced into signing them.
However, under the Rome Statute, the ICC can take jurisdiction over a national of even a non-party state if he or she commits a crime in a state party’s territory. The US vehemently objects to this, but it’s nothing new. Under well-established principles of international law, the crimes being prosecuted in the ICC — genocide, war crimes, crimes against humanity — are crimes of universal jurisdiction.
The doctrine of universal jurisdiction permits any country to try foreign nationals for the most egregious crimes, even without any direct relationship to the prosecuting country. That means other nations can bring US leaders to justice for war crimes and crimes against humanity.
Indeed, the United States has asserted jurisdiction over foreign nationals in anti-terrorism, anti-narcotics trafficking, torture and war crimes cases. The US government tried, convicted and sentenced Charles “Chuckie” Taylor Jr. to federal prison for torture committed in Liberia. Israel tried, convicted and executed Adolph Eichmann for his crimes during the Holocaust.
There will be strong political pressure to avoid liability for US leaders. But Bensouda has undoubtedly withstood heavy pressure by asking the court to approve an investigation into crimes committed in Afghanistan. She also invariably faced considerable pushback for opening a preliminary examination in January 2015 of possible war crimes committed by Israel and the Palestinians in Gaza. Bensouda is expected to announce the results of that examination in December.
The ICC has been criticized for focusing almost exclusively on African leaders. This is apparently changing with possible investigations into the conflicts in Afghanistan and Palestine.
If a full investigation of US officials proceeds as requested, it “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,” according to Jamil Dakwar, director of the ACLU’s Human Rights Program.
During the presidential campaign, Donald Trump declared he would “immediately” resume waterboarding and would “bring back a hell of a lot worse than waterboarding” because the United States is facing a “barbaric” enemy. He labeled waterboarding a “minor form” of interrogation.
“The long overdue message that no one is above the law is particularly important now, as the Trump administration ramps up military machinations in Afghanistan and embraces the endless war with no plan in sight,” Katherine Gallagher, a senior lawyer at the Center for Constitutional Rights, said in a statement.
About the author: Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and a member of the national advisory board of Veterans for Peace. The second, updated edition of her book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, will be published in November. Visit her website: MarjorieCohn.com. Follow her on Twitter: @MarjorieCohn.
Source: Truth Out
Read our Disclaimer/Legal Statement!
Donate to Support Us
We would like to ask you to consider a small donation to help our team keep working. We accept no advertising and rely only on you, our readers, to keep us digging the truth on history, global politics and international relations.
The US Agency for International Development (USAID) was created by Pax Americana to provide a cover for CIA agents under the pretext of helping the 3rd World. US Imperialism has to do some good or its potential targets would not open their doors to intelligence agents posing as do gooders, so USAID was created.
Today the USAID is headed by Gayle Smith, formerly the “Special Advisor” to President Barack Obama and Senior Director of the National Security Council. To put it simply, Gayle Smith is one of the top “spooks” in the USA, someone who told the CIA what to do.
In classical mythology, the Acheron is one of the rivers of the Underworld. It marks the boundary between the living and the dead. The ferryman Charon ferries the dead across the Acheron to a place where they lose memory. Nothing of what made them human remains—happiness, suffering, love, hatred, guilt, regret, redemption, betrayal, forgiveness.
From Gilgamesh to Odysseus to Aeneas, the living heroes of the epic descend into the Underworld at a point of despair in the sense of their quest. Burdened by a fate that requires momentous courage and tragic self-sacrifice for the sake of their people’s survival, they resent ...
Exclusive: The U.S. government and the mainstream media rushed to judgment again, blaming the Syrian government for a new poison-gas attack and ignoring other possibilities, reports Robert Parry.
With the latest hasty judgment about Tuesday’s poison-gas deaths in a rebel-held area of northern Syria, the mainstream U.S. news media once more reveals itself to be a threat to responsible journalism and to the future of humanity. Again, we see the troubling pattern of verdict first, investigation later, even when that behavior can lead to a dangerous war escalation and many more deaths.
Before a careful evaluation of the evidence about Tuesday’s tragedy ...
The United States the use of force against the sovereign state of Syria is a prima facie violation of international law. It is an act of aggression against the UN Member State in violation of the Charter of the United Nations. It therefore gives Syria the right to react in self-defense or a legal justification for the use of force and it gives any other United Nations Member State the right to act in collective self-defense and to support Syrian action against the US This is the basic understanding of the international legal consequences of the United States use of ...
On October 21, 2016 a typical Estonian school witnessed an opening ceremony of the bronze bust of Harald Nugiseks. He was an SS-Oberscharführer (Sergeant) in World War II, who served voluntarily in the 20th Waffen Grenadier Division of the Waffen SS. According to the director of this education institution, the memory of Harald Nugiseks will lead to the increase in feelings of patriotism among students and must increase their willingness to protect their country in case of external aggression.
So who is this Nugiseks? – During the Second World War, he was awarded with the second highest military award in the ...
Human Rights Day, December 10, 2016, we bring to the attention of our readers an important article published in 2002 on the record of US war crimes.
The issue of War Crimes emerged after World War I at the Versailles Conference, but it was not until the end of World War II that a more comprehensive definition of what constitutes war crimes was developed. First among new international conventions addressing war crimes was the 1950 Charter of the Nuremberg Tribunal. Its fundamental premise was that the conduct of war in violation of international treaties was a crime against peace. Ill treatment ...
During the recent years of the confrontation between Russia and Ukraine, there has been one issue where the Western mainstream press simply cannot fully ignore or reject the Russian arguments. This issue concerns the life and actions of Stepan Bandera (1909-1959) and his followers from what is known as the “Banderite” faction of the Organization of Ukrainian Nationalists (OUN, a far-right organization that took terrorist actions against Polish and Soviet officials from the 1920s to the 1950s and which is now legally protected from any criticism in Ukraine).THE “WRONG” AND “RIGHT” VICTIMSBecause Bandera was born on January 1, 1909, celebrations ...
America is a country in which dollars count far more than voters do, and that’s what all of the data shows. And that’s a dictatorship by the richest.
This kind of country, this kind of country, and this kind of country, get this kind of President. And the rulers blame it on the public, instead of on the billionaires, the actual rulers themselves (the behind-the-scenes rulers). These rulers selected the politicians and offered those to the public to select from in ‘elections’ — and they then blame the public for the choices that the public make, from amongst these bad final ...
Perhaps no country on Earth is more misunderstood by Americans than North Korea. Though the country's leaders are typically portrayed as buffoonish, even silly, in fact they are deadly serious in their cruelty and skill at retaining power. Though the country is seen as Soviet-style communist, in fact it is better understood as a holdover of Japanese fascism.
And there is another misconception, one that Americans might not want to hear but that is important for understanding the hermit kingdom: Yes, much of its anti-Americanism is cynically manufactured as a propaganda tool, and yes, it is often based on lies. But ...
What do you think of when you hear the name Colonel Gaddafi? Tyrant? Dictator? Terrorist? Well, a national citizen of Libya may disagree but we want you to decide.
For 41 years until his demise in October 2011, Muammar Gaddafi did some truly amazing things for his country and repeatedly tried to unite and empower the whole of Africa.
So despite what you’ve heard on the radio, seen in the media or on the TV, Gaddafi did some powerful things that are not characteristic of a “vicious dictator” as portrayed by the western media.
Here are ten things Gaddafi did for Libya that you may not know about…
1. In Libya a home is ...
How can it be that in virtually all of the Presidential-candidate head-to-head Democratic versus Republican polling that was done of both Democratic and Republican candidates during the primaries, the preferred Democratic candidate against any one of the Republican candidates was Bernie Sanders, but he almost certainly won’t be that Party’s nominee (and there’s more on that here); and the preferred Republican candidate against either one of the Democratic candidates was John Kasich, but he certainly won’t be the Republican nominee?
Sanders and Kasich also scored the highest in his respective Party for net favorability rating, but almost certainly neither candidate will ...
Trump the Anti-Globalist Champion of the People?
Many Americans who’ve been supporting President-elect Trump see him as the populist leader who will save America from ruin. Trump supporters have been unfairly marginalized and pigeonholed by the MSM broad stroke as white supremacy extremists bent on plunging America back into a new Jim Crowism era and a second Civil War along with a growing number of angry, uneducated, disenfranchised blue collar, mostly white male redneck loser types. Despite a spike in racist graffiti and vandalism since the election, this gross overgeneralization is the Hillary/Soros/Rothschild/MSM’s desperate attempt to discredit Trump’s victory while Soros ...
Obit scribblers are calling John McCain a war “hero.” Well, I have to concede that unlike so many warmongering chickenhawks such as Karl Rove, Paul Wolfowitz, Robert Kagan and most other neocons, McCain did actually serve in the military. But the same could be said for nearly all top Nazis including Hitler and Goering; they fought in a war and they loved war. They were destructive persons who learned nothing positive from their military experience.
Of course, few of the pundits and politicians who are eulogizing McCain would wish to include Nazis in their hall of fame, nor would most of ...
Fifty years ago this next month (December 1965), with the urging of the Joint Chiefs of Staff and the rubber stamp approval of President Lyndon Johnson and Secretary of Defense Robert McNamara, the United States Air Force started secretly spraying the forests of Laos with a deadly herbicide that was known as Agent Orange.
Operation Ranch Hand, whose motto was “Only We Can Prevent Forests” (a shameful takeoff of Smokey the Bear’s admonition), was a desperate, costly and ultimately futile effort to make it a little harder for the National Liberation Front soldiers from North Vietnam to join and supply their ...
On the eve of World War II the United States was still mired in the Great Depression and found itself facing war on two fronts with Japan and Germany. However bleak the outlook, it was nothing compared to the outlook today. Has anyone in Washington, the presstitute Western media, the EU, or NATO ever considered the consequences of constant military and propaganda provocations against Russia? Is there anyone in any responsible position anywhere in the Western world who has enough sense to ask: “What if the Russians believe us? What if we convince Russia that we are going to attack her?”The ...
The American taxpayers have been fleeced for almost seventy years by a so-called «intelligence» agency that has systematically violated the US Constitution, broken practically every federal law on the books, and penetrated virtually every facet of American life. The Central Intelligence Agency’s creation was bemoaned by its creator, President Harry S Truman, who, in a fit of personal angst following the 1963 assassination of President John F Kennedy, wrote in a newspaper column,
“I never had any thought that when I set up the CIA that it would be injected into peacetime cloak and dagger operations… I, therefore, would like to see the ...
In just one week the United States government will commemorate its 16th anniversary in the bombing and occupation of Afghanistan.
This war did not really begin in 2001 resulting from the attacks on September 11 where planes were hijacked and flown into the World Trade Center in New York City and the Pentagon headquartered right outside of Washington, D.C.
U.S. involvement in the destabilization of Afghanistan goes back to the late 1970s when the People’s Democratic Party of Afghanistan (PDP) led a socialist-oriented administration which advanced the cause of working people and farmers as well as providing fundamental civil rights to women. ...
The US Senate Report documenting CIA torture of alleged terrorist suspects raises a number of fundamental questions about the nature and operations of the State, the relationship and the responsibility of the Executive Branch and Congress to the vast secret police networks which span the globe – including the United States.
CIA: The Politics of a Global Secret Police Force
The Senate Report’s revelations of CIA torture of suspects following the 9/11 bombing is only the tip of the iceberg. The Report omits the history and wider scope of violent activity in which the CIA has been and continues to be involved. ...
The following timeline describes just a few of the hundreds of atrocities and crimes committed by the CIA. (1)CIA operations follow the same recurring script. First, American business interests abroad are threatened by a popular or democratically elected leader. The people support their leader because he intends to conduct land reform, strengthen unions, redistribute wealth, nationalize foreign-owned industry, and regulate business to protect workers, consumers and the environment. So, on behalf of American business, and often with their help, the CIA mobilizes the opposition. First it identifies right-wing groups within the country (usually the military), and offers them a deal: ...
PRISTINA, Kosovo — It was the fall of 2000, just over a year after the end of the war in Kosovo, when two NATO military intelligence officers produced the first known report on local organized crime, painting the former political leader of the Kosovo Liberation Army (KLA), Hashim Thaci, as having “established influence on local criminal organizations, which control [a] large part of Kosovo.”
The report, the existence of which has not been previously reported, was widely distributed among all NATO countries, according to former NATO sources interviewed by GlobalPost. And year after year as the nascent democracy of Kosovo struggled ...
“The American War in Vietnam: Crime or Commemoration?” [Review of John Marciano’s Book]
Another Dangerous Rush to Judgment in Syria
Why the United States’ Use of Force Against Syria Violates International Law
Who is Profiting from the Rise of Fascism?
Ukraine’s Cult of Stepan Bandera: Not a Detail, but a Cornerstone
Why America is a Dictatorship
Americans have Forgotten What We did to North Korea
Libya: Ten Things about Gaddafi They don’t want You to Know
US, UK, & EU, are Now Dictatorships
President Trump: Just Another Con Man Riding a Trojan Horse
The Fallacy of Calling McCain or Anyone Else a War Hero
War Crimes: Agent Orange, Monsanto, Dow Chemical and Other Ugly Legacies of the Vietnam War
Where do Matters Stand? Does the U.S. Intend to Wage War on Russia?
CIA: The Corrupt and Ignorant Agency
United States Imperialism Continues War in Afghanistan and the Destabilization of Africa
Imperialism and the Politics of Torture: Towards a Global Secret Police Force
A Timeline of CIA Atrocities (a list up to 1993)
Kosovo’s Mafia: How the US and Allies Ignore Organized Crime