ICC prosecutors: U.S. forces may have committed war crimes

THE HAGUE, Netherlands -- The chances of American servicemen being sent to face justice at the International Criminal Court are remote, even if the chief prosecutor opens an investigation into alleged crimes in Afghanistan, legal experts said Tuesday.

Stephen Rapp, a former ambassador at large for war crimes issues in the Obama administration said he considers it "highly, highly unlikely" an American will be prosecuted at the world's first international court with global reach, based in The Hague, Netherlands.

Rapp's comments came a day after the ICC's chief prosecutor said in a report U.S. forces in Afghanistan may have committed the war crime of torture when interrogating detainees, opening the possibility of Americans being prosecuted, even though their country is not a member of the court.

"Members of U.S. armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014," according to the report issued late Monday by prosecutor Fatou Bensouda's office. Bensouda didn't comment on the report Tuesday.

The report added CIA operatives may have subjected at least 27 detainees in Afghanistan, Poland, Romania and Lithuania to "torture, cruel treatment, outrages upon personal dignity and/or rape" between December 2002 and March 2008.

Prosecutors said they will decide "imminently" whether to seek authorization to open a full-scale investigation that could lead to war-crimes charges.

The report also highlighted Afghan military, security and police forces likely committed war crimes by mistreating detainees, and the Taliban killed thousands of civilians and committed many other atrocities.

A key hurdle ICC prosecutors would have to cross if they target Americans for investigation is a legal doctrine known as complementarity.

The ICC is a court of last resort that steps in to take cases nations are unwilling or unable to prosecute. That means if American authorities have conducted serious investigations, the complementarity doctrine would block ICC jurisdiction.

"The U.S. can prevent ICC prosecutions by undertaking a good-faith investigation and prosecution in its own military or civilian courts," said professor Michael Scharf, dean of the Case Western Reserve University School of Law.