International Criminal Court: cause and effect?

“As detailed in previous reporting, the Office has found that the information available provides a reasonable basis to believe that crimes under articles 7 and 8 of the Statute have been committed in the situation in Afghanistan, including crimes against humanity of murder under article 7(1)(a), and imprisonment or other severe deprivation of physical liberty under article 7(1)(e); murder under article 8(2)(c)(i); cruel treatment under article 8(2)(c)(i); outrages upon personal dignity under article 8(2)(c)(ii); the passing of sentences and carrying out of executions without previous judgement pronounced by a regularly constituted court under article 8(2)(c)(iv); intentionally directing attacks against the civilian population or against individual civilians under article 8(2)(e)(i); intentionally directing attacks against personnel, material, units or vehicles involved in a humanitarian assistance under article 8(2)(e)(iii); intentionally directing attacks against buildings dedicated to education, cultural objects, places of worship and similar institutions under article 8(2)(e)(iv); and treacherously killing or wounding a combatant adversary under article 8(2)(e)(ix).” [International Criminal Court (ICC), The Office of the Prosecutor, Report on Preliminary Examination Activities (2015), p27]

It is hard not to suspect a link between the International Criminal Court and Austraiian Defence Force investigations, given that the preliminary ICC investigation would have begun sometime between 2013 to 2015 and the Australian Government would have been aware that it might become one of the nations under formal criminal investigation.

CAUSE?

On 30 October 2017 the Presidency of the International Criminal Court (ICC) in The Hague was notified by the Prosecutor and on 3 November the situation in the Islamic Republic of Afghanistan was assigned to Pre-Trial Chamber III with the following composition: Judge Antoine Kesia-Mbe Mindua ,Judge Chang-ho Chung and Judge Raul C. Pangalangan.

The New York Times, 3 November 2017:

The International Criminal Court’s prosecutor said Friday that she would request permission to open an Afghanistan investigation, a step that may lead to the court’s first indictments of Americans for war crimes.

The prosecutor, Fatou Bensouda, has been collecting information on the war in Afghanistan for years. She has suggested before that she has evidence for a prosecution — not only of allegations of atrocities committed by combatants in Afghanistan, including the Taliban, the Afghan armed forces and the United States military, but of related crimes in other countries where C.I.A. operatives once held and tortured Afghan prisoners.

Ms. Bensouda said she would ask the judges in the court, which is based in The Hague, for authorization to pursue a formal investigation. If they agree, the Afghanistan investigation and any resulting indictments could pose a legal test for the United States — which does not recognize the court’s jurisdiction — to cooperate with it, especially if any defendants are American.

“In due course, I will file my request for judicial authorization to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan,” Ms. Bensouda said in a statement.

Should the judges grant her request, she said, her office will conduct an independent and impartial investigation into accusations of atrocities “committed by any party to the armed conflict.”

EFFECT?

ABC News, 11 July 2017:

Hundreds of pages of secret defence force documents leaked to the ABC give an unprecedented insight into the clandestine operations of Australia’s elite special forces in Afghanistan, including incidents of troops killing unarmed men and children.

The ABC can reveal that some of the cases detailed in the documents are being investigated as possible unlawful killings.

This comes a day after the ABC revealed the alleged cover up of the killing of an Afghan boy and another alleged incident in which a father and son were shot dead during a raid.

The documents, many marked AUSTEO — Australian Eyes Only — suggest a growing unease at the highest levels of Defence about the culture of Australia’s special forces as they prosecuted a bloody, secretive war against insurgents across a swathe of southern Afghanistan.

One document from 2014 refers to ingrained “problems” within special forces, an “organisational culture” including a “warrior culture” and a willingness by officers to turn a blind eye to poor behaviour.

Another document refers to a “desensitisation” and “drift in values” among elite Special Air Service soldiers serving in Afghanistan, while others allude to deep divisions between the two elite units which primarily comprise the special forces - the SAS based in Perth and 2 Commando Regiment based in Sydney.

A large proportion of the documents are reports on at least 10 incidents between 2009-2013 in which special forces troops shot dead insurgents, but also unarmed men and children.

The Inspector General of the Australian Defence Force is investigating at least two of the incidents as part of its inquiry into the conduct in Afghanistan of special forces, which includes alleged unlawful killing.