WASHINGTON (AP) - The International Criminal Court announced last week it plans to begin investigating war crimes and crimes against humanity in the Afghan conflict.
The probe will include looking into actions by the International Security Assistance Force, which includes American and British troops, as well as non-state actors like the Taliban.
ICC prosecutor Fatou Bensouda said on Friday she believed there “is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.”
While the United States has not ratified the international statute under which the ICC claims jurisdiction, the announcement appears likely to complicate the national debate around an already contentious conflict and the future of the congressional authorization for the use of military force.
Some of the issues the prosecutor is likely to look at include accidental or negligent deaths of civilians in aerial bombardments or search and seizure operations, and the possible torture of detainees and terrorism suspects.
The announcement comes at a difficult time for the administration, which has had to defend its strategy after President Donald Trump authorized sending up to 4,000 additional troops to Afghanistan to bolster the 11,000 American troops already there in advisory and training roles.
Congress approved the authorization for the use of military force against the Taliban and Al Qaeda in 2001 (a second was approved in 2002 for the Iraq conflict), but many lawmakers - including the ranking Democrat on the Senate Foreign Relations Committee, Maryland Sen. Ben Cardin - believe the provision has outlived its legal and operational effectiveness.
Cardin last week told the Senate panel that he was opposed to keeping the authorizations that have allowed three administrations to prosecute conflicts in Afghanistan and Iraq.
“I hope that soon we will also be considering the repeal of the existing, over-extended Authorizations for the Use of Military Force from 9/11 and the Iraq War, and a new AUMF tailored to the current terrorist threats,” Cardin said.
Cardin and other committee members heard testimony from Secretary of State Rex Tillerson and Defense Secretary James Mattis about the continuing need for the authorizations.
The secretaries argued that the existing authorizations provide sufficient legal justification to continue the wars against the Taliban in Afghanistan and ISIS in Iraq.
“Traditional campaigns to protect our people from the enemy must adapt to the non-traditional, transnational character of this fight,” Mattis said. “The 2001 and 2002 authorizations to use military force.remain a sound basis for ongoing U.S. military operations against a mutating threat.”
Repealing the authorizations “would only cause policy and legal uncertainty which could lead to additional litigation and public doubt,” Mattis argued. “The uncertainty accompanying that situation could only signal to our enemies and our friends that we are backing away from this fight.
Some senators were not swayed.
“I am deeply concerned about President Trump’s inclination to go to war rather than find diplomatic solutions to these crises. It seems we have U.S. troops deployed almost everywhere in the world,” Cardin countered.
Cardin’s trepidation was echoed by the foreign relations panel’s chairman, Sen. Bob Corker, R-Tennessee, who has been locked in a war of words with Trump in recent weeks.
“The president’s de facto ability to initiate conflict has grown in an age of advanced technology, including the use of unmanned drones, and war from a distance, where large numbers of boots on the ground are not necessary to conduct a very significant military engagement,” Corker told the committee.
“We must also be mindful that moving an AUMF without significant, bipartisan support could send the wrong message to our allies and our adversaries that we are not united and committed to victory,” the senator said.
The focus on a new authorization intensified following the deaths of four American servicemen in Niger, a country unfamiliar to many Americans. The incident shed light on the diverse and clandestine nature of U.S. military engagements fought around the world with what critics say is little congressional oversight, relative to the scope and number of engagements.
“I do not think the American people want the United States conducting a global, endless ’shadow war,’ under-the-radar, covert, and beyond scrutiny,” Cardin said.
The Niger incident also brought into question, for some lawmakers and defense policy critics, the operational success of military actions and whether they are ultimately harmful or helpful to the American effort to destroy terrorist networks.
A United Nations report showed that until July of this year, 232 civilians were killed by U.S. and Afghan airstrikes, a 43 percent increase over the same period in 2016. The total number of civilians killed in the first six months of 2017 reached 1,266, an eight-year high.
Cardin and other lawmakers have said that civilian casualties and a lack of diplomatic and aid efforts have hindered the long-term reconstruction of Afghan institutions.
“Every dollar that we cut in terms of foreign aid, in terms of the State Department, in terms of diplomacy, in terms of development aid, it means that’s one more bullet we have to buy,” said Mathew Verghese, spokesman for Maryland congressman Rep. Anthony Brown, D-Largo, a member of the House Armed Services Committee.
According to an Oct. 30 report by the Defense Department’s Special Inspector General for Afghanistan Reconstruction, the United States has spent more than $70 billion directly on Afghan security forces, around 60 percent of the total reconstruction budget for the country. Total appropriations for the war are estimated at over $714 billion.
“SIGAR’s analysis revealed that the U.S. government was not properly prepared from the outset to help build an Afghan army and police force that was capable of protecting Afghanistan,” the report continued.
The report also noted that billions of dollars were wasted by ineffective management of fuel and equipment, inadequate literacy-training programs for Afghan personnel and “ghost” soldiers on the rolls “allowing corrupt commanders to pocket the salaries” paid for by American taxpayers.
In one instance, nearly $500 million were spent on second-hand Italian transport planes unable operate in Afghanistan’s environment.
The report also quoted former Defense Secretary Robert Gates as saying, “Our military was designed to defeat other armies, navies and air forces, not to advise, train and equip them.”
That assessment sharply contradicts the optimism of Mattis and Gen. Joseph Dunford, chairman of the Joint Chiefs of Staff, who told the House Armed Services Committee last month that part of Trump’s Afghan strategy would be to expand the American advisory role significantly and allow Afghan forces to take the lead in fighting.
But some analysts question whether Afghan forces are capable of providing the security needed to win the support of the majority of the population.
“Insecurity has increased significantly throughout the country, civilian deaths have shot up, and the Afghan security forces are taking large, and potentially unsustainable, casualties,” said Vanda Felbab-Brown, senior fellow at the Brookings Institution, a Washington-based think tank.
In a sign of how precarious the position of Afghan local forces is, U.S. commanders in Afghanistan last month decided at the request of the Afghan government to classify key data related to the growth and development of Afghan forces, only the second time this has happened in 16 years.
This included information on Afghan police and military casualties, raising questions about the operational effectiveness of these units.
In 2016, the last year for which figures are available, Afghan forces lost 6,785 service members killed and more than 11,000 wounded.
Cardin and other Democratic lawmakers from Maryland have spoken strongly about the need to change U.S. policy in Afghanistan to embrace a diplomatic approach with identifiable goals.
In September, Cardin introduced the Promoting Peace and Justice in Afghanistan Act of 2017, requiring the administration to “report on U.S. engagement in support of a peace agreement and transitional justice, as well as on progress to mitigate corruption, human rights abuses, and civilian casualties committed by Afghan security forces.”
“Very soon, practically the only tool left in the U.S. foreign policy toolbox will be a massive hammer, applied everywhere for lack of better options,” Cardin said.
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