Who will win as the US squares up for a fight with the ICC over Afghanistan?

In 2002, United States lawmakers passed what was nicknamed the Hague Invasion Act, authorising military action to free any American service members who were being held on war crimes charges at the International Criminal Court.

This week, such a bizarre scenario came one small step closer to being realised, with ICC judges ruling that a probe into claims of torture and other atrocities committed in Afghanistan should go ahead.

Legal experts told The National not to expect to see US marines storming Dutch beachheads any time soon. But the ICC decision and the angry reaction from the Trump administration augur a rocky road ahead.

The row comes amid sensitive deal-making over a US military pull-out from Afghanistan and could see Washington slap sanctions on ICC judges, stirring tensions between Washington and its European allies which are strong backers of the court.

"It's a long road from the ICC decision to the execution of arrest warrants against US nationals," Liz Evenson, a Washington-based global justice expert at Human Rights Watch, told The National.

“Investigations take a long time, the court has no police force and it relies on members to enforce its warrants. This is definitely a long game and a difficult one that will require support from those who believe in accountability. But justice has a long memory.”

On Thursday, an ICC appeals panel gave the green light to prosecutor Fatou Bensouda to investigate whether war crimes were committed in Afghanistan by the Taliban, Afghan military and US forces between 2003 and 2014.

Ms Bensouda, a Gambian lawyer, seeks to probe everything from alleged civilian killing sprees by Taliban militants to the torture of detainees by Afghan security services and, to a lesser extent, by US forces and the CIA.

After the ruling, Ms Bensouda said the "many victims of atrocities" in Afghanistan were "one step closer" to justice.
In Washington, US Secretary of State Mike Pompeo delivered a fiery response. He blasted an "unaccountable political institution masquerading as a legal body" that was drifting away from its mandate by focusing on America when it should be going after rogue regimes.
"We have lots of young men and women who served in Afghanistan, and not only our military but intelligence warriors and diplomats who served there," Mr Pompeo told Fox News on Friday.
"Now you have this crazy, renegade body sitting in The Hague, Netherlands, who wants to come after them for actions that the American people wanted them to undertake."

The US and other forces entered Afghanistan after the 9/11 attacks to topple the Taliban government, which had protected Al Qaeda leader Osama bin Laden.

In its reports, HRW accused Afghan police and the National Directorate of Security of widespread abuse of detainees, including electro-shocks and head-drilling, in a long-running battle with Taliban insurgents.

For its part, the Taliban has carried out suicide and other deliberate attacks on thousands of civilians, including judges, lawmakers, community elders and journalists, including by suicide attacks, car bombs and booby traps, HRW says.

The probe also shines a light on US forces. Washington is not a party to the court, and says it will protect US servicemen from politicised prosecutions. But the ICC prosecutor has jurisdiction over alleged crimes committed on Afghan territory by foreigners that are not being properly addressed in domestic courts.

"There's a whole panoply of criminality by the Taliban and Afghan security forces that would make for feasible ICC cases, while alleged US crimes are just one small sliver of what the court is assessing," Christopher "Kip" Hale, an atrocity crime attorney who prosecuted Khmer Rouge cases in Cambodia, told The National.

Still, there is evidence of wrongdoing by US service members. The ICC prosecutor’s early-stage findings showed “crimes of torture, outrages upon personal dignity and rape and other forms of sexual violence” by US personnel.

A study by US lawmakers in 2014 detailed the CIA's harsh detention and interrogation programme of waterboarding and other "enhanced interrogation techniques" in Afghanistan and at other black sites globally.

In the past, human rights groups have called for criminal probes into former president George W Bush, vice president Dick Cheney, defence secretary Donald Rumsfeld, CIA director George Tenet and lawyers from that administration, including John Yoo and attorney general John Ashcroft.

"The US has shown itself entirely unwilling to hold the perpetrators of its torture programme to account and has actively tried to impede the court’s investigation," said Grant Shubin, legal director of the Global Justice Centre, a campaign group.

World governments should support the ICC's recent "critical step towards justice", he said.

Any ICC indictment of an American official would not come for many years, said Mr Hale, but would pose challenges for US allies like South Korea, Britain and France that back the court yet value ties with the US.

“You enter a world of dicey international intrigue by which more than 120-plus ICC members around the world become obliged to execute arrest warrants of ex-American officials, and all the trouble this creates between that government and Washington,” Mr Hale said.

While it is intriguing to imagine a Bush-era official taking an ill-advised shopping trip to Paris and ending up in a Dutch courtroom, Stephen Rapp, a prominent war crimes lawyer, said that the chances of any ICC charges against Americans were slim.

In 2012, US attorney general Eric Holder concluded that there was not enough evidence to prosecute anybody in the US for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003. Ms Bensouda would likely reach the same conclusion, said Mr Rapp.

The ICC was designed to prosecute the kinds of ethnic cleansing that ravaged Rwanda and the Balkans in the 1990s. It charges the ringleaders of systematic abuses when domestic courts are unwilling or unable to prosecute.

In her Afghanistan probe, Ms Bensouda will see “horrible” evidence of CIA waterboarding, but the small number of detainee deaths and a “genuine, if imperfect” US effort to hold wrongdoers to account makes the case unsuitable for the ICC, said Mr Rapp, a US ambassador on war crimes during the Obama administration.

“There can be bad things that happen, but a prosecutor has to be able to go to court and tie it all together.”

Still, Mr Pompeo’s response suggested that the Trump administration would not wait around for any ICC indictments. Last April, Washington revoked Ms Bensouda’s US visa for her work on Afghanistan. ICC insiders expect more to follow.

In September 2018, the national security adviser at the time, John Bolton, threatened to target ICC prosecutors and judges with travel bans, freezing their bank accounts and even prosecuting them in US courts.

The US may also try to circumvent the court. Ted Cruz, a Texas senator, is hatching plans for a UN Security Council resolution to bar the ICC from bringing charges against citizens of non-member states — which includes the US, Russia, China and Israel.

Similarly, the US could ask the UN Security Council to freeze the ICC probe for a year, arguing that cutting a deal with the Taliban, ending its longest war and withdrawing some 13,000 US troops was more important than historic claims of torture, Mr Rapp said.