US Army 10th Mountain Division soldiers take over a dwelling in March 2002 near three villages in Afghanistan which were al-Qaeda and Taliban strongholds. Picture: Reuters
There are great changes afoot on the international criminal justice landscape. Last week, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced its decision to request judicial authorisation for an investigation into the situation in Afghanistan.

Given that this situation involves investigating the conduct of American troops, it could do wonders for the OTP’s reputation with regard to the allegation it “targets weaker African” states. It could simultaneously result in the weakening of prosecutorial efficacy if it embarks on yet another near-impossible investigation.

The OTP made its preliminary examination into Afghanistan public in 2007 (a preliminary examination precedes an investigation, as the OTP needs to determine whether there is sufficient information to proceed).

The preliminary examination focuses on crimes against humanity and war crimes allegedly committed during the armed conflict between pro-government forces and anti-government forces in Afghanistan. In this case, the “pro-government forces” include the US forces insofar as they were supporting the established Afghanistan government, and the anti-government forces include the Taliban.

Clandestine detention facilities operated by the Central Intelligence Agency (CIA) and US troops are where allegations stem from. US troops and CIA operatives allegedly used torture, sexual violence and rape as part of their interrogation toolkit. They are believed to have subjected at least 88 detainees to this cruel and degrading treatment between May 2003 and December 2014, with most of the alleged abuse having occurred during 2003 and 2004.

The most disturbing element of the allegations is that it was not just a group of wayward soldiers; instead, it seems to have been part of a formally approved interrogation strategy designed to elicit “actionable intelligence” from detainees.

If the OTP’s request is granted by the judges, the opening of an investigation would be a positive development for victims, the rule of law, justice and accountability. It would send a strong message that no one is above the law and that the ICC is ready to investigate and prosecute without fear or favour. It would also positively influence how the OTP is perceived by many African politicians

The ICC has been accused of targeting Africa and of being a neo-colonialist institution due to the fact that all of the cases at trial stage are African cases. However, a careful deconstruction of this claim and an understanding of the limits of the court’s jurisdiction might well indicate it is more accurate to say it is Africans who are making use of the court.

Gabon is the latest country to do so, having asked the ICC to intervene last year. Uganda, the Democratic Republic of Congo, Central African Republic, and Mali also requested the ICC’s intervention. Be that as it may, the opening of an investigation that involves a global superpower could dramatically counter the allegation of bias against Africans.

However, this could turn out to be yet another impossible investigation for the OTP. The US does not acknowledge the ICC’s jurisdiction and is not a party to the Rome Statute, and thus co-operation is unlikely. From the court’s inception, the relationship with the US has been frosty.

Under Clinton, the Rome Statute was signed but never ratified, and thus was never legally binding.

Under Bush in 2002, the Rome Statute was “unsigned” and the relationship deteriorated, including manipulating other member states to ensure they sign immunity agreements that protect US citizens and blocking UN peacekeeping resolutions that did not include ICC immunity provisions.

Under the same administration, the American Service-Members’ Protection Act was signed into law and it allows the president to use “all means necessary and appropriate to rescue any US or allied personnel detained or imprisoned by, on behalf of, or at the request of the ICC”.

The frost began to thaw under Obama, with the US voting in favour of two UN Security Council referrals and assisting with the transfer of wanted suspects Bosco Ntaganda and Dominic Ongwen to the ICC. The political motivation behind both these actions cannot be ignored, but they can also be seen as important acts in support of international criminal justice.

Last week’s announcement has been all but welcome, with Pentagon spokesperson Eric Pahon stating publicly that an ICC investigation of Americans would be “wholly unwarranted and unjustified”.

Once the request is made, the next step is for the judges of the ICC to consider the prosecutor’s request. Should they deny the request, the OTP would look good for having made the request in the first place, and then it would be the judges who would shoulder the “blame”. Should the judges agree, then a very challenging investigation would begin.

Either way, this is definitely an important development that could mark a turning point in international justice.

lAngela Mudukuti is an international criminal justice lawyer