IJCentral: International Justice Central

Is whistle-blowing website Wikileaks putting the international war crimes tribunal in an uncomfortable position?

Afghanistan war logs leaked by Wikileaks could eventually be used in a war crimes trial with Americans in the dock, according to Luis Moreno-Ocampo, prosecutor at the International Criminal Court (ICC). He was speaking at a Q&A session attended by my friend James Reinl in New York.

However, there’s huge scepticism over whether the ICC would actually have the guts to take on the US. So far only five proceedings have been launched – all relating to African countries.

Afghanistan is a party to the treaty that established the ICC, which is based in The Hague. The ICC is thus empowered to prosecute war crimes, crimes against humanity and genocide in Afghanistan when the national authorities are unwilling or unable to investigate themselves.

ICC procedures are complex. For example, the ICC will not look at potential atrocities in Iraq because Iraq, like most Arab countries, is not a member state (only Jordan, Djibouti and Comoros are members).

However, the ICC has issued a warrant against Sudanese president Omar Bashir on charges including genocide in Darfur. Sudan is not a party to the court, but UN Security Council Resolution 1593 referred Sudan to the ICC and obligates it to cooperate.

The US is also not a party to the court. As a permanent veto-wielding member of the UN Security Council, it is unlikely ever to allow the 15-nation body to refer it to the ICC.

So will any of this ever come to anything? Ocampo says: “We have to make a decision about what to do there.” Is the court’s credibility on the line?

By James Reinl

NEW YORK // The prosecutor of the world’s permanent war crimes
tribunal says he is using secret United States military files leaked
by a whistle-blower website to help determine whether atrocities have
been committed in Afghanistan.

Luis Moreno-Ocampo, prosecutor of the International Criminal Court
(ICC), said the release in July of more than 70,000 documents, mostly
classified US military reports, by WikiLeaks, will help decide whether
to launch a full investigation into Afghan war crimes.

“We are collecting all this information in the Afghanistan case
because we are doing the pre-examination. Afghanistan is a state party
so we should do it,” Mr Ocampo said. “In the Afghanistan case, we are
trying to collect this information to have clarity on different types
of criminality committed by different forces. And we have to make a
decision about what to do there.”

The ICC revealed it was examining alleged crimes in Afghanistan in
2007. Mr Ocampo said last year [09] that he was looking into
accusations against coalition forces, the Taliban and al Qaeda, but
that his probe was hampered by a lack of information.

WikiLeaks has since released its so-called Afghan War Diary, which
catalogues many civilian deaths from 2004-2010 caused by insurgent
bomb attacks, botched air raids by coalition jets and soldiers
shooting innocents at checkpoints.

The preliminary analysis is the first phase of an ICC probe, which can
spur a full investigation and lead to summonses or arrest warrants.
ICC proceedings are active in five countries – Uganda, Democratic
Republic of Congo, Sudan, Central African Republic and Kenya.
Preliminary analyses include Afghanistan, Georgia, Guinea, Côte
d’Ivoire, Colombia and Palestine.

Harold Hongju Koh, the US State Department’s legal adviser, said the
ICC prosecutor has a “very broad jurisdiction” and should investigate
“more immediate” concerns than acts by US forces in Afghanistan. The
WikiLeaks data dump was unreliable as evidence, he added.

“This prosecutor has many cases under his observation and there are
five matters under which he is proceeding – and to the best of my
knowledge that is not one of them,” Mr Koh said on Wednesday [27]
during a New York University law seminar.

“There are many things on the web, frankly I don’t believe them all
and frankly I don’t think a prosecutor conducts his business as a
serious prosecutor by not first doing investigations in which he
gathers evidence, as opposed to things on the web, and determine
whether there is basis for a case.”

Afghanistan is a party to the treaty that established The Hague-based
ICC. Any war crime committed on its territory by Afghan nationals or
foreigners is of interest to the court. The ICC is empowered to
prosecute war crimes, crimes against humanity and genocide in
Afghanistan when the national authorities are unwilling or unable to
investigate themselves.

The US has the most troops in Afghanistan. It is not a member of the
ICC and US officials have long insisted that American soldiers abroad
should be subject to US law, not international treaties. The
administration of former US president George W Bush denied allegations
of torture and war crimes committed after the US-led invasion toppled
the Taliban government.

The founder of WikiLeaks, Julian Assange, compared the release of
Afghan war documents to opening up the files of East Germany’s secret
Stasi police. The leaked documents probably contained “evidence of war
crimes”, he said, but that was “up to a court to decide”.

Last week, the website released nearly 400,000 classified US files on
the Iraq war. The dump showed 15,000 more Iraqi civilians had died
than previously thought, the group said, and that US troops hand over
detainees to Iraqi authorities knowing that they faced torture.

The two leaks represent the largest security breaches of their kind in
US military history. The Pentagon said WikiLeaks, a non-profit group
funded by human rights campaigners, journalists and the general
public, was putting US troops and Afghan informers at risk.

Christopher Hall, a legal adviser for the London-based pressure group
Amnesty International, said the WikiLeaks dump, together with data
collected previously, contained enough evidence of atrocities for the
prosecutor to seek permission to launch a full probe on Afghanistan.

“It is not an issue at this stage whether the leaked information,
whose authenticity has not been denied, is admissible evidence in a
trial in the ICC,” said Mr Hall. “Coupled with all the other reliable
information that the office of the prosecutor has been compiling since
2007, concerning all parties to the conflict, the office has more than
sufficient information to determine whether to seek authorisation from
the ICC pre-trial chamber to open a formal criminal investigation
designed to obtain sufficient admissible evidence for the trial of
individuals for war crimes and crimes against humanity.”

source: Tom Spender