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No Country is Above the Law: US Facing War Crimes Prosecutions in The Hague

Moazzam Begg, who spent a year being tortured at Bagram Airbase, looks at the International Criminal Court’s renewed investigation of alleged American human rights violations in Afghanistan.

No Country is Above the Law
US Facing War
Crimes Prosecutions
in The Hague

Moazzam Begg, who spent a year being tortured at Bagram Airbase, looks at the International Criminal Court’s renewed investigation of alleged American human rights violations in Afghanistan. 

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Imagine if the Taliban threatened to capture and punish International Criminal Court (ICC) officials involved in investigating allegations that they had committed war crimes in Afghanistan? Some might be shocked while others would expect nothing less.

The ICC has been trying to investigate human rights violations in Afghanistan carried out by the CIA and the US military, the Afghan National Army (ANA) and the Taliban, but it has been struggling. 

A pre-trial panel last year decided to halt the proceedings, citing the passage of time and Washington and Kabul’s “lack of cooperation” making a successful prosecution unlikely. However, a ruling by an appeal court this week overturned this, ruling that the ICC must not “erroneously inhibit the prosecution’s truth-seeking function” and that the investigation must continue.

If peace is built on covering up crimes – on all sides – then it may be doomed to begin with.

All parties are accused of carrying out war crimes but, so far, it is not the Taliban which is making threats against the ICC. 

The US – which rejects the investigation and does not recognise the ICC – imposed sanctions and travel restrictions in 2018 against ICC personnel. The move came after the ICC’s chief prosecutor Fatou Bensouda’s announcement to commence investigations into “war crimes by members of the United States armed forces” and “secret detention facilities in Afghanistan”. 

At that time, the US National Security Advisor John Bolton branded the ICC “illegitimate” and he and White House spokeswoman Sarah Huckabee Sanders said that the US would stop prosecutions of US citizens by the ICC “by any means necessary”.

The Taliban-US accord concluded last week is arguably the most significant peace treaty in modern times. It brings to an end – at least on paper – the longest war in US history and brings potential peace to a nation occupied by two global superpowers for more than 40 years. Anything that jeopardises this fragile peace process risks reigniting the conflict.

But, if the peace is built on covering up crimes – on all sides – then it may be doomed to begin with. Perhaps Afghanistan requires a South African-style Truth and Reconciliation court process, but that cannot happen without full cooperation by the US. And that’s where the problem lies.

“Torture Works”

I endured a year of torture and abuse and saw prisoners beaten to death in front of me while I was imprisoned – without charge – by US forces in Afghanistan in 2002.

I submitted that evidence to the ICC in 2018 and, through my organisation CAGE, we found many others who had suffered a similar fate and were prepared to relive their ordeal so that survivors and their families might heal through restorative justice that ensures perpetrators are held accountable.

I have spent the past 15 years engaging in various legal processes to seek accountability for the role of the US and British Governments in my torture. I have engaged in civil litigation, given evidence to a judge-led inquiry and parliamentary investigations into torture. I’ve given eye-witness testimony to the police for their investigation into MI5’s torture complicity and I have interviewed countless torture survivors. 

I have seen the US Senate produce a report on CIA torture – and a Hollywood film made about it – and the UK Government do something similar. I have seen former British Prime Minister Theresa May apologise to Abdel Hakim Belhadj and his wife for British complicity in their torture. I have seen US attorney generals redefine torture to avoid prosecution and its architects admitting in court how they executed that torture. I have seen US Presidents George W. Bush, Barack Obama and Donald Trump, respectively, go from saying “we don’t torture” to “we tortured some folks” to the belief that “torture works”.  

However, in two decades, I have never seen any official prosecuted for their role in torture in a court that matters.

In 2012, I gave evidence alongside a female survivor of Abu Ghraib at the Kuala Lumpur War Crimes Tribunal. It was the only time in my life that I have been cross-examined. As a result, President Bush and his ministers, Dick Cheney, Donald Rumsfeld and their legal advisors, Alberto Gonzales, David Addington, William Haynes, Jay Bybee and John Yoo were tried in absentia and found guilty of war crimes. The tribunal, however, was largely symbolic and had no power of enforceability. 

In 1998, 120 countries agreed to sign the Rome Statute, following genocides in Bosnia and Rwanda, to provide legal redress for victims of war crimes when national systems fail. The ICC has mostly been active in prosecuting leaders of poor African nations and, in 2016, Russia withdrew its signature from the Rome Statute and joined China, Israel and the US in non-recognition of the court. 

China, Israel, Russia and the US are all presently accused of carrying out war crimes and crimes against humanity. If the ICC can set a precedent that it is prepared to prosecute the most powerful nations in the world and hold them to account then the US is a good place to start. 

Moazzam Begg is a former Guantanamo Bay prisoner and outreach director at CAGE.

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