On March 5^th, appeals judges at the International Criminal Court (ICC) overturned the decision of the lower level and launched an investigation into alleged war crimes and crimes against humanity by Afghan, Taliban and U.S. forces and private contractors in relation to Afghanistan. The court has the jurisdiction to proceed because Afghanistan is a state party to the Rome Statute establishing the court, even though the U.S. is not.

In the words of Amnesty International’s Head of International Justice, Solomon Sacco:

This is an historic moment where the International Criminal Court has reversed a terrible mistake and decided to stand by the victims of war crimes and crimes against humanity committed by all sides to the conflict in Afghanistan.

The decision marks the first time the court’s prosecutor has been authorized to investigate U.S. forces. Washington has never accepted the court’s jurisdiction and refuses to cooperate with it. Reacting to the court’s decision in predictable fashion, American Secretary of State Mike Pompeo called it “a truly breathtaking action by an unaccountable political institution, masquerading as a legal body…”.

In response, Jamil Dakwar, the director of the ACLU’s Human Rights Program, said in a statement:

While the road ahead is still long and bumpy, this decision is a significant milestone that bolsters the ICC’s independence in the face of the Trump administration’s bullying tactics….

Countries must fully cooperate with this investigation and not submit to any authoritarian efforts by the Trump administration to sabotage it. It is past time perpetrators are held accountable for well-documented war crimes that haunt survivors and the families of victims to this day.

In an interview on CBC radio’s As It Happens, lawyer Katherine Gallagher, who represents a group of victims of the U.S. Guantanamo Bay detention program, highlighted the reams of evidence already collected by governments, by the United Nations, by the European Court of Human Rights, by countless NGOs, and from accounts from the victims:

So in some ways, this was a very easy case and the investigation should have been opened already two years ago.

At the same time, the decision represents an extraordinary act of courage by the appeals judges, given the unrelenting American attacks on the court’s legitimacy, its funding, and even the ability of prosecutors to do their investigatory work.

Like her ACLU colleague, Katherine Gallagher underscored the obligation of all states parties to co-operate with these investigations:

We need those member states to bring forward the information they have and then add that to the investigations already carried out by the U.S. military [and] the U.S. Congress. There is a massive Senate torture report. Already, with just the executive summary, we see a well-documented global torture program.

For the full As It Happens interview, including “how far up the chain of command” the indictments are likely to go and the mechanisms for enforcement should convictions against high level American officials ultimately be obtained, see: Guantanamo detainees’ lawyer celebrates ICC probe into alleged. U.S. war crimes (cbc.ca/radio/asithappens, 5 March 2020).

Implications for Canada

Given the extremely close interaction between the American and Canadian forces in Afghanistan at the relevant time and the political firestorm in Canada over credible allegations of ongoing transfers of Canadian detainees to known conditions of torture, it is inevitable that the ICC investigation will reignite questions over Canadian culpability.

In the searing words of Canadian diplomat Richard Colvin in testimony to a parliamentary committee on 18 November 2009:

As I learned more about our detainee practices, I came to the conclusion that they were contrary to Canada’s values, contrary to Canada’s interests, contrary to Canada’s official policies, and also contrary to international law. That is, they were un-Canadian, counterproductive, and probably illegal.

Yet, to date, no one has been held accountable and no lessons have been learned.

The ICC is a court of last resort. A state party like Canada, with an advanced legal system, is expected to carry out its own good faith investigations into possible war crimes by Canadians.

Against a backdrop of persistent stonewalling by the then Harper government, there have been multiple calls to the Justin Trudeau government for a public inquiry into the role of Canadian politicians, officials and military leaders in the transfer of hundreds of detainees to known conditions of torture. These include a high level Open Letter signed by 41 human rights experts, former and current leading parliamentarians and other eminent Canadians, an e-petition initiated by former MP Craig Scott and a Rideau Institute report which documented in painstaking detail the case to be investigated.

The Open Letter reads in part:

A public inquiry would serve to authoritatively investigate and report on the actions of all Canadian officials in relation to Afghan detainees, and to review the legal and policy framework that attempted to justify these actions. Based on this review, the Commission would issue recommendations with a view to ensuring that Canadian officials never again engage in practices that violate the universal prohibition of torture.

These efforts did not even merit a response from Prime Minister Justin Trudeau. Instead, Minister of Defence Harjit Sajjan, a potential subject of the inquiry, replied on behalf of the government:

Throughout Canada’s military operations in Afghanistan, the Government of Canada ensured individuals detained by the CAF were treated humanely and handled, transferred or released in accordance with our obligations under international law. Therefore the Government of Canada does not believe an independent judicial commission of inquiry is necessary.

The government now has an opportunity to rethink that decision and it would be wise to do so in a proactive way. Rideau Institute President Peggy Mason cautions:

Keeping our heads down and trying to avoid crossing Donald Trump may appear to be the best political survival strategy for many issues. But it was never appropriate when the matter in question was accountability for alleged war crimes. Now, in light of the ICC investigation, it may become both politically and legally untenable:

The core issue is whether Canadian government representatives (civilian and military) are above the international rule of law or accountable for alleged international crimes.

Whither Canada?

We call on the government of Canada to fully cooperate with the ICC in its investigation of war crimes and crimes against humanity in relation to Afghanistan. But equally importantly we call on the Prime Minister to launch a long-overdue public inquiry into Canada’s policies and practices relating to the transfer of hundreds of detainees to Afghan authorities during Canada’s military mission in that country.

Iran, Sanctions and International Women’s Day

On Sunday March 8^th we celebrate International Women’s Day. It is timely therefore to consider the commentary by the Gender, Peace and Security division of the International Crisis Group on the devastating impact of American sanctions on Iranian women:

To help justify its coercive measures against the Islamic Republic, Washington often evokes Iranian women’s struggles for inclusion and equality. But evidence from today’s Iran shows that U.S. policies are instead contributing to holding women back.

For the full article see: U.S. “Maximum Pressure” on Iran Hurts the Women it Claims to Help (crisisgroup.org, 6 March 2020)

Photo credit: Canadian Press/Dene Moore (licensed)