The Hague seeks to investigate ‘war crimes and crimes against humanity’ in Afghanistan following US-led invasion

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US soldiers outside Bagram Airbase, 50kms north of Kabul. Photo: AFP

Published: 10:16pm, 3 Nov 2017Updated: 10:34pm, 3 Nov 2017

The chief prosecutor for the International Criminal Court said on Friday she is seeking an investigation of alleged war crimes committed in the war in Afghanistan, an unprecedented probe that could encompass American troops.

Prosecutor Fatou Bensouda said in a statement that a preliminary examination found “a reasonable basis to believe that war crimes and crimes against humanity” were committed in Afghanistan after US-led troops moved in following the September 11 attacks.

US soldiers take cover as a helicopter lands to evacuate the wounded after a unit’s armoured vehicle hit a roadside bomb in the Tangi Valley of Afghanistan's Wardak Province. Photo: AP

Once the prosecutor submits her investigation request to the court based in the Dutch city of The Hague, it is up to the tribunal’s judges to decide whether to open one. An Afghanistan probe would be exceptional because until now, all ICC trials have dealt with alleged crimes in Africa.

Bensouda said in a report last year that US forces and the CIA may have committed war crimes by torturing detainees in Afghanistan between 2003 and 2014. That opens the possibility that Americans could be among those investigated for possible prosecution, even though the US is not among the court’s more than 120 members.

Residents of Kama Ado, Afghanistan, survey the damage to a house in December, 2001, where locals said 17 members of one family were killed in a US bombing raid. Photo: AP

Americans could face prosecution if their alleged crimes took place in a country that is an International Criminal Court member, such as Afghanistan, and if they were not prosecuted at home. However, legal experts have said the chances of American service members being charged and sent to face justice at the ICC are remote.