Another Reason for the ICC to Formally Investigate Afghanistan

So, it turns out that the US military was lying through its teeth when it claimed that the three Afghan women murdered during a “bungled” Special Operations attack in Afghanistan six weeks ago were not killed by NATO — read: American — forces:

NATO military officials had already admitted killing two innocent civilians — a district prosecutor and local police chief — during the raid, on a home near Gardez in southeastern Afghanistan. The two men were shot to death when they came out of their home, armed with Kalashnikov rifles, to investigate.

Three women also died that night at the same home: One was a pregnant mother of 10 and another was a pregnant mother of six. NATO military officials had suggested that the women were actually stabbed to death — or had died by some other means — hours before the raid, an explanation that implied that family members or others at the home might have killed them.

Survivors of the raid called that explanation a cover-up and insisted that American forces killed the women. Relatives and family friends said the bloody raid followed a party in honor of the birth of a grandson of the owner of the house.

On Sunday night the American-led military command in Kabul issued a statement admitting that “international forces” were responsible for the deaths of the women. Officials have previously stated that American Special Operations forces and Afghan forces conducted the operation.

[snip]

The admission was an abrupt about-face. In a statement soon after the raid, NATO had claimed that its raiding party had stumbled upon the “bodies of three women who had been tied up, gagged and killed” and hidden in a room in the house. Military officials had also said later that the bodies showed signs of puncture and slashing wounds from a knife, and that the women appeared to have been killed several hours before the raid.

And in what would be a scandalous turn to the investigation, The Times of London reported Sunday night that Afghan investigators also determined that American forces not only killed the women but had also “dug bullets out of their victims’ bodies in the bloody aftermath” and then “washed the wounds with alcohol before lying to their superiors about what happened.”

Not surprisingly, the US is denying The Times‘ claim about the bullets.  Given its willingness to lie about who killed the women, though, that denial should be taken cum grano salis.  Regardless, the incident provides yet another reason for the OTP to open a formal investigation into the situation in Afghanistan. I noted in my September post on the OTP’s preliminary investigation that it would be difficult for the ICC to prosecute US and NATO soldiers for crimes in Afghanistan, because most of the highest-profile acts involved attacks that caused significant collateral damage, which are almost impossible to prosecute as war crimes under Article 8(2)(b)(iv) of the Rome Statute.  The same cannot be said, however, of the murder of the women.  NATO claims that its investigators have concluded “that the women were accidentally killed as a result of the joint force firing at the men.” That self-serving claim, however, is belied by its own earlier claim that its forces had discovered “bodies of three women who had been tied up, gagged and killed.”  Perhaps they were accidentally tied up and gagged, too?  In any case, the murders may well qualify as the war crime of wilful killing, Article 8(2)(a)(i) of the Rome Statute.  Removing the bullets could also arguably qualify as the war crime of “committing outrages upon personal dignity,” Article 8(2)(b)(xxi).  Neither war crime is anywhere near as difficult to prove as the war crime of launching a disproportionate attack.

Let me be clear: I do not believe that the OTP should open a formal investigation into Afghanistan simply because of this one incident.  Nor do I believe that US and NATO forces should be the focus of such an investigation.  What I do believe is that an Afghanistan investigation should take a close look at the murder of the women, as well as at the numerous instances of torture at Bagram by US soldiers.  The US would no doubt go into conniptions at the prospect of one of its soldiers being prosecuted, but that should not dissuade the OTP.  The costs of losing the US’s desultory cooperation with the ICC would be far outweighed by the benefits of demonstrating once and for all that the Court is neither obsessed with Africa nor a tool of Western colonial powers.