U.S. Brags About How It 'Stopped International Courts' Trying to Charge Troops with War Crimes

The United States' top diplomat has bragged about the government's decision to defy an international court's attempts to investigate potential U.S. war crimes in Afghanistan.

In a speech delivered Tuesday to veterans at the Indiana Convention Center in Indianapolis, Secretary of State Mike Pompeo listed the various ways that President Donald Trump's administration has instilled a sense of "Americanism" in his foreign policy. In addition to taking a hard-line against adversaries abroad, Pompeo said that "Americanism means taking care of our own" overseas.

"We've stopped international courts from prosecuting our service members," Pompeo said. "It was an outrage."

The remark was a likely reference to the Hague's International Criminal Court (ICC) Prosecutor Fatou Bensouda ill-fated attempts "to initiate an investigation into alleged war crimes and crimes against humanity" committed by all sides of the ongoing conflict in Afghanistan, including by U.S. troops, allied Afghan forces and their mutual foe, the Taliban Islamist militant group.

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U.S. Forces in Afghanistan conduct strikes against what were said to be Taliban leaders and fighters assembled at compounds in Nawah district, Ghazni province, Afghanistan, September 10, 2018, the same day that White House national security adviser John Bolton threatened International Criminal Court judges considering opening a war crimes case against the U.S. over its longstanding Afghanistan mission. Martha Schaeffer/Resolute Support Mission

The U.S. first got involved in Afghanistan in covert support of mujahideen rebels battling Soviet forces backing a communist government in Kabul in the 1980s, helping the insurgents achieve a victory but setting the stage for the rise of Islamist groups such as Al-Qaeda and later the Taliban. The U.S. staged a direct intervention in 2001 following the 9/11 attacks claimed by Al-Qaeda and has been active in the country ever since.

Bensouda first made her request to the ICC in November 2017 after a lengthy preliminary investigation. In a press release at the time, the court said she was authorized to begin looking "to independently, impartially and objectively investigate and prosecute alleged war crimes and crimes against humanity, committed in the context of the conflict in Afghanistan" since 2003.

The statement said Bensouda "has determined that there is a reasonable basis to proceed with an investigation" into relevant abuse committed by these three parties, specifically noting in one category "War crimes by members of the United States ("US") armed forces on the territory of Afghanistan, and by members of the US Central Intelligence Agency ("CIA") in secret detention facilities in Afghanistan and on the territory of other States Parties to the Rome Statute, principally in the period of 2003-2004."

In September, however, White House national security adviser John Bolton cited the ongoing investigation and another probe into alleged crimes committed by Israel against Palestinians as signs that the court was "ineffective, unaccountable, and indeed, outright dangerous" in a speech to the Federalist Society in Washington. He rejected "any attempts to constrain the United States," highlighting that the U.S. had "un-signed" the 2002 Rome Statute under former President George W. Bush, whom Bolton served as United Nations ambassador.

"We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us," Bolton argued, adding that the "the U.S. will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court."

Former judge Christoph Flügge cited these comments and U.S. threats to restrict the visas of ICC judges as one of the reasons he felt the need to resign from his decade-long post on the International Criminal Tribunal for the former Yugoslavia in a January interview with The Guardian. In March, Pompeo announced "a policy of U.S. visa restrictions on those individuals directly responsible for any ICC investigation of U.S. personnel."

The following month, ICC judges "rejected unanimously" Bensouda's request, claiming that "an investigation into the situation in Afghanistan at this stage would not serve the interests of justice." Reasons provided included "the time elapsed since the opening of the preliminary examination in 2006 and the political changing scene in Afghanistan since then, the lack of cooperation that the Prosecutor has received and which is likely to go scarcer should an investigation be authorized hampering the chances of successful investigation and prosecution, as well as the need for the Court to use its resources prioritizing activities that would have better chances to succeed."

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White House national security adviser John Bolton speaks to the Federalist Society in Washington on September 10, 2018. Criticizing the International Criminal Court's attempts to look into U.S. and Israeli wrongdoing, Bolton threatened to blacklist and even arrest judges. ANDREW CABALLERO-REYNOLDS/AFP/Getty Images

Bensouda's office has said it "will further analyze the decision and its implications, and consider all available legal remedies." The State Department noted the timing between its visa restrictions and the decision, while the White House called the ruling "a major international victory, not only for these patriots, but for the rule of law."

"We welcome this decision and reiterate our position that the United States holds American citizens to the highest legal and ethical standards," the White House added, criticizing the court's "broad, unaccountable prosecutorial powers; the threat it poses to American national sovereignty; and other deficiencies that render it illegitimate." The U.S. also warned that "any attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response."

Bensouda has pressed on with attempts to open the investigation by appealing the ICC judges' decision, while a report issued last month by the U.N. Assistance Mission in Afghanistan found that the U.S. and its Afghan allies were responsible for more civilian casualties than the Taliban in the first half of 2019.

Trump's special Afghanistan envoy Zalmay Khalilzad has returned to the Qatari capital of Doha for another round of peace talks with the Taliban, which have so far refused to speak with the Kabul government they view as illegitimate. Senior Pentagon officials have told Newsweek that the U.S. was trying to strike a final agreement designed to establish an inter-Afghan dialogue before September 28, when the country is set to hold elections that the Taliban have vowed to disrupt.