Green Berets challenge war crimes investigation by the International Criminal Court

Jack Murphy
May 06, 2020 - 12:01 pm
US Special Forces responds

Photo by Spc. Samuel Keenan

When the International Criminal Court (ICC) in the Hague prepared to announce that it was investigating alleged war crimes in Afghanistan, newly minted national security advisor John Bolton was incredulous.

Making it clear that he spoke on behalf of President Donald Trump he said, “The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court. We will not cooperate with the ICC. We will provide no assistance to the ICC and we certainly will not join the ICC.” Now the ICC is investigating the U.S. military and CIA for alleged detainee abuse and other war crimes.

Notions of an international court had been around since the conclusion of the first world war, largely being an outgrowth of Woodrow Wilson's League of Nations. After WWII and the Nuremberg trials for Nazi war criminals, however, a permanent international court was not established.

In the 1990s, two ad hoc tribunals were set up by the UN to investigate and prosecute genocide and war crimes in the former Yugoslavia and Rwanda. The latter, dubbed the International Criminal Tribunal for the former Yugoslavia, indicted Bosnians for war crimes. The CIA and American Special Operations units hunted down, captured and rendered some of those war criminals to justice at the Hague.

A more formal arrangement for an international criminal court was established as an independent body, separate from the United Nations at the Hague with investigative and prosecutorial powers beginning in 2002 under the Rome Statutes, signed by 123 countries, excluding the United States. The ICC is intended to be a court of last resort, an independent international body that can indict and prosecute criminals when their home countries cannot, or will not.

Now the ICC was threatening to launch an investigation into war crimes in Afghanistan, then they stopped it, then re-started it again on March 5, with lead prosecutor Fatou Bensouda reopening the case. This time the ICC also announced that the court will not just investigate war crimes in Afghanistan committed by the United States government, the Taliban and the Afghan government, but will also look at cases of Afghan citizens abused in CIA detention facilities in Romania, Lithuania and Poland -- so-called “black sites” run during the George W. Bush administration.

The Special Forces Association weighed in, saying that while working in conjunction with Washington D.C.-based think tank Foundation for Defense of Democracies (FDD), they would vehemently oppose the ICC's investigation.

“Any investigation of U.S. activities in Afghanistan will disproportionately fall upon U.S. special operations,” Doug Livermore, the Special Forces Association national director for external communications, told Connecting Vets. “This could be a direct threat to our personnel and to the reputation of the Special Forces Regiment." 

Since the ICC became active in 2002, it has issued 44 indictments, all of them directed against Africans ranging from Libya's Muammar Gaddafi to Uganda's Joseph Kony. This has led to criticism that the ICC is a tool of western imperialism used against Africans exclusively.

Fatou Bensouda of the Gambia was elected to be the lead prosecutor for the ICC in 2011, replacing Argentinian Luis Ocampo. Bensouda who served as minister of justice under Gambian dictator Yahya Jammeh who stands accused of stealing millions of dollars from his government. In 2019, Secretary of State Pompeo carried out previous threats made to the ICC warning them not to continue their investigation of war crimes in Afghanistan by revoking Bensouda's visa.

ICC accusations against America

The ICC alleges that Afghan citizens were subjected to “torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence, committed as part of a policy by members of the CIA in a number of detention facilities in Afghanistan.”

The ICC also claims to have more than 200 credible reports that both the Taliban and Afghan security forces engaged in war crimes.

“Afghan National Security Forces (ANSF), in particular members of the National Directorate for Security (NDS) and the Afghan National Police (ANP), have engaged in systemic patterns of torture and cruel treatment of conflict-related detainees in Afghan detention facilities, including acts of sexual violence,” a 2017 ICC report reads. The U.S. military is also singled out for alleged cases of detainee abuse early on in the war in Afghanistan.

In assessing potential war crimes, the ICC writes that their initial investigation was, “conducted primarily on the basis of public sources, including information submitted to and reported by United Nations bodies as well as the publicly available results of congressional and DOJ inquiries in the US.” The ICC has also collected potential witness statements via e-mail and online forms.

Much of the evidence cited is derived from reports compiled by the Senate Armed Forces Committee and the Senate Select Committee on Intelligence. The United States has also hosted a number of war crimes trials of U.S. service members, some of them high profile in recent years. According to the Rome Statute which governs ICC activities, they need not investigate cases when the local government is investigating themselves.

“We are concerned that this investigation is moving forward, Fatou Bensouda is not deferring to the U.S. and our investigations,” FDD senior fellow Orde Kittrie told Connecting Vets, adding that, "she believes that the U.S. has not thoroughly investigated these allegations. We are concerned that the administration and Congress, need to take a strong stance. We believe there is leverage that is not being used and we are concerned that...it is the era of COVID-19, we are concerned that this is falling through the cracks."

Special Forces responds

While U.S. Special Forces has not been specifically named in any ICC filings to date, the Special Forces Association believes that any investigation conducted will largely focus on the Special Forces Regiment.

“A number of countries who we are allies with are signatories and Special Forces members could be subject to arrest and extradition. If anyone in our regiment is working in one of these countries they could be arrested,” Livermore said.“This could be a direct threat to our personnel and to the reputation of the Special Forces Regiment.”

Livermore, who continues to serve in Special Forces with the National Guard, also highlighted the geopolitical dimension of the ICC's investigation. By allowing the ICC to continue its investigation, “we are handing our global competitors a tool to limit our options” he said in reference to America's global reach.

Lastly, the Special Forces Association is concerned that, “we do not want to a set a precedent in which an unelected body is allowed to prosecute soldiers post facto. We do not want to submit to an international body of which we are not a signatory,” Livermore said.

Failing that, there is another option, although for the moment it remains little more than an obscure law which sounds like the plot of a spy novel.

In 2002, Congress passed the American Service-Members' Protection Act (ASPA). The law states that the president may use, “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”

A 2009 article vividly painted such a scenario, writing, “odd as it may seem, the law allows the U.S. to constitutionally send jack-booted commandos to fly over fields of innocent tulips, swoop into the land of wooden shoes, tread past threatening windmills and sleepy milk cows into the Dutch capital – into a city synonymous with international law – and pry loose any U.S. troops.” 

Kittrie and Livermore were both clear when interviewed by Connecting Vets that they would never want the situation to escalate to this point and hope to persuade Congress and the White House to provide political leverage to shut the investigation down.

Leverage

The Special Forces Association and FDD believe that the United States federal government can pressure the International Criminal Court, despite being a non-signatory country.

"There is a significant financial incentive to be leveraged in regards to allies and contributors to the ICC," Livermore said.

“I happen to believe that if the Japanese and the Germans had a conversation with the ICC that they are getting a lot of heat from the Americans, that we would like to see you guys (the ICC) focus on cases involving ICC members where they can get convictions. Frankly, there would be cases that would be a lot easier to win. The case against the U.S. is really a political part of the ICC, not a case where they are in strong positions,” Kittrie said.

Kittrie sees an opening to apply pressure in regard to the ICC's budget.

“Japan is the largest contributor, then Germany, then France, then the UK,” he said. “They are 40% of the ICC budget. This is significant leverage. Threatening the withdrawal of their contributions, let alone the top four, could have a significant impact.”

He suggested that President Trump could use the host nation port agreement between the United States and Japan, which is due for renegotiation, as an incentive to encourage the Japanese government to speak to the ICC about their war crimes investigation in Afghanistan.

The Special Forces Association hopes to mobilize its chapters spread across the country, and a few abroad, to lobby for bipartisan support from the U.S. government in order to pressure the ICC to shut down their investigation. "We advocate for positions in the best interest in members of the Special Forces Association and Special Forces regiment," Livermore said.

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Reach Jack Murphy: jack@connectingvets.com or @JackMurphyRGR.