International Criminal Court (ICC) Prosecutor Fatou Bensouda filed a request with the Pre-Trial Chamber on November 20, 2017 seeking judicial authorization to open a formal investigation into crimes committed in Afghanistan since May 2003 and on the territory of other States Parties where crimes with a nexus to the armed conflict were committed since July 2002. The request follows a decade-long preliminary examination into possible international crimes committed on the territory of Afghanistan, which became a State Party to the ICC on May 1, 2003. The investigation would explore crimes committed in the context of the armed conflict in Afghanistan by U.S. forces or the C.I.A., members of the Taliban, and officials of the Afghan government.

One hundred and twenty-three countries, including Afghanistan, are member-states of the ICC.  The ICC has jurisdiction to adjudicate crimes under international law committed on the territory of States that have joined the Court, against nationals of countries that have joined, or upon referral by the Security Council.  Because the alleged crimes occurred on the territory of Afghanistan and at least also on the territory of Romania, Lithuania, and Poland, which are all States Parties to the ICC, investigations can proceed in regards to crimes committed by U.S. actors - even though the U.S. is not a party - in addition to Afghan, Taliban, or related forces. The investigation can seek evidence of crimes against humanity and war crimes, including torture, committed by U.S. actors during the armed conflict in Afghanistan, or with a nexus thereto, and at so-called "black sites" in other countries. Notably, the jurisdiction of the ICC could include on-going international crimes committed on the territory of Afghanistan.

The Pre-Trial Chamber set a deadline of January 31, 2018 for victims to present their views on the opening of an investigation, including the scope of the investigation.  CCR submitted a filing, concerning two men detained at Guantánamo, Sharqawi Al Hajj and Guled Duran, in support of the ICC Prosecutor’s request on that date. The filing, which includes two “victim’s representations,” draws from publicly available information to detail the treatment, including torture, that the men endured in CIA black sites, proxy-detention, and DOD facilities, as well as their ongoing indefinite detention at Guantánamo, elaborates on the importance of an ICC investigation into these international crimes, and elaborates on the suggested scope of the inquiry to ensure the investigation captures the full liability of those who bear the greatest criminal responsibility.

For other cases challenging war crimes and crimes against humanity under international law, see Accountability for U.S. Torture: France; Accountability for U.S. Torture: Spain; Accountability for U.S. Torture: Germany; Accountability for U.S. Torture: Switzerland; and Accountability for U.S. Torture: Canada. See also Katherine Gallagher, Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture, Journal of International Criminal Justice (2009).