Could US face ‘criminal liability’ for torture program? ICC greenlights inquiry into Afghan war crimes

The International Criminal Court (ICC) has approved a probe into alleged war crimes committed in Afghanistan by the US and other parties, potentially exposing Washington to legal repercussions for its nearly 20-year occupation.

Hailed as a landmark ruling, the panel of judges at The Hague reversed a decision by the court's Pre-Trial Chamber denying the ICC prosecutor's request to open a formal inquiry into crimes committed in connection with the conflict in Afghanistan. The previous decision not to pursue an investigation was reportedly influenced by the belief that the United States would not cooperate with the proceedings.

ICC prosecutor Fatou Bensouda said that there were ample grounds to begin an investigation into Taliban crimes, as well as an alleged torture program operated by Afghan authorities, the US military and the CIA. The court agreed on Thursday, authorizing the investigation.

The court's decision was applauded by many – but some warned that expectations should be tempered.

Mark MacKinnon, a correspondent for Canada's Globe and Mail, said that the ICC had done the "right thing" by pushing forward with the investigation.

"Powerful nations can't be above international law, or the whole concept collapses," he wrote.

The Center for Constitutional Rights described the ruling as "the first time senior US officials may face criminal liability for their involvement in the torture program" in Afghanistan.

The ruling marks a "good day" for the ICC, but it's far from certain that the investigation will lead to formal charges, cautioned Kevin Jon Heller, an associate professor of international law at the University of Amsterdam.

The United States is not a member of the ICC, but Afghanistan is – leaving open the possibility that US crimes committed on Afghan soil could be prosecuted by the court. 

Even if the inquiry exposes serious wrongdoing, it's unclear how the ICC would proceed. US President Donald Trump has been an outspoken opponent of the Hague-based court, and even imposed travel restrictions and other sanctions against ICC employees.

Trump has slammed the ICC for its “broad” and “unaccountable” prosecutorial powers, and has repeatedly scoffed at the idea of US soldiers being charged with war crimes. In November, he pardoned two army officers facing war crimes charges for their actions in Afghanistan, and reinstated the rank of Edward Gallagher, a Navy SEAL who was accused of similar atrocities during his deployment in Iraq, but was ultimately cleared of most wrongdoing.

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