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Prosecutor’s Afghan War Inquiry May Mean Clash with U.S.

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The International Criminal Court’s chief prosecutor took an important step on Monday in pursuing a war-crimes case related to Afghanistan, requesting permission to investigate torture, rape and other atrocities — including those possibly committed by Americans, reported The New York Times (US).

The prosecutor, Fatou Bensouda, signaled on Nov. 3 her intention to seek permission from the court for such an investigation. But Ms. Bensouda’s filing with the court on Monday put the request in motion and provided new detail about the scope of her proposed inquiry.

If a panel of judges in the court, which is based in The Hague, grants her request, it will be the first possible prosecution of Americans at the court, established 15 years ago to seek justice for victims of war crimes, crimes against humanity and genocide. An investigation could set off a clash between Ms. Bensouda and the United States, which did not sign the Rome Statute, the treaty that created the court in 2002.

Ms. Bensouda said that based on a preliminary examination of evidence that began in 2006, she had “determined that there is a reasonable basis to believe” that crimes had been committed by members of the Taliban and the Haqqani Network militant group; the Afghan National Security Forces; United States armed forces; and the Central Intelligence Agency.

Most of the abuses described by the prosecutor took place in Afghanistan. The C.I.A. also was suspected of committing abuses in secret detention facilities in Afghanistan, Poland, Romania and Lithuania.

While the United States does not recognize the court’s authority to prosecute Americans, the other four countries all signed the Rome Statute and are subject to the court’s jurisdiction. American citizens can be charged with crimes committed in those countries.

Human rights groups welcomed Ms. Bensouda’s announcement, calling it long overdue.

“The I.C.C. prosecutor’s investigation request is a strong signal to those who thought they could escape justice for serious crimes in Afghanistan,” Richard Dicker, international justice director at Human Rights Watch, said in a statement. “Investigating abuses by all sides, including those implicating U.S. personnel, reinforces the message that no one, no matter how powerful the government they serve, is beyond the law.”

The United States said that it would oppose any attempt by Ms. Bensouda to implicate Americans.

“Our view is clear: an I.C.C. investigation with respect to U.S. personnel would be wholly unwarranted and unjustified,” the State Department said in a statement quoted by The Associated Press. “More broadly, our overall assessment is that commencement of an I.C.C. investigation will not serve the interests of either peace or justice in Afghanistan.”

Even if Ms. Bensouda receives authorization to proceed with an investigation, which could take weeks or months, it is unclear, at best, how far she could go with it, lawyers said.

Alex Whiting, a former prosecutor at the court who now teaches at Harvard Law School, said he believed that Ms. Bensouda probably would focus first on suspected Taliban abuses because they constitute the majority of crimes.

But unwillingness by others to cooperate with her inquiry, Mr. Whiting said, would “make it very difficult for her to progress from the stage she is at now — sufficient evidence to justify opening an investigation — to actually being able to charge anyone with crimes.”

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