International Criminal Court Prosecutor Opens Probe into Afghanistan NATO Actions:

The Wall Street Journal reports today that the prosecutor’s office of the International Criminal Court has begun opening investigations into allegations of war crimes and crimes against humanity by NATO forces, including US forces, in Afghanistan. The report said that the prosecutor said that it was also probing alleged violations by the Taliban. (Joe Lauria, “Court Orders Probe of Afghanistan Attacks,” WSJ, September 10, 2009.)

The prosecutor said forces of the North Atlantic Treaty Organization — which include U.S. servicemen — could potentially become the target of an ICC prosecution, as the alleged crimes would have been committed in Afghanistan, which has joined the war-crimes court. However, every nation has the right to try its own citizens for the alleged crimes, and the ICC can step in only after determining a national court was unable or unwilling to pursue the case.

Luis Moreno-Ocampo, the ICC prosecutor, said in remarks Wednesday that:

The ICC’s preliminary inquiry is “very complex,” Mr. Ocampo said. The court is trying to assess allegations of crimes including “massive attacks,” collateral damage and torture, he said, adding that his investigators were getting information from human-rights groups in Afghanistan and from the Afghan government.

Anyone following the news from Afghanistan has a good idea of what the NATO actions in question are:

Mr. Ocampo’s remarks come after NATO forces this week acknowledged that civilians were among the dozens killed in an airstrike on two hijacked fuel trucks. They were struck by U.S. warplanes after being called in by German ground command.

The killings were the latest in a series of U.S. airstrikes that have inadvertently killed Afghan civilians, U.S. officials say.

Leave aside the obvious political questions of the position this puts the Obama administration in, with regards to its oft-stated goal of getting more cooperative with, if not actually joining, the ICC. The more important legal question is what kinds of violations of the laws of war would be at issue? Moreno-Ocampo gave some indication in his remarks (emphasis added):

Mr. Ocampo said that under certain circumstances, so-called collateral damage — the inadvertent killing of civilians in a military strike — could be prosecuted as a war crime. “It’s very complicated,” Mr. Ocampo said. “War crimes are under my jurisdiction. I cannot say more now because we are just collecting information.”

That Ocampo would address directly as an issue, up-front, the prosecution of excessive but inadvertent collateral damage as such - inadvertent killing - as a war crime, rather than intentional, categorical violations of the laws of war such as the direct targeting of civilians, raises the legal stakes very considerably ....

(Update: At Opinio Juris, see my co-blogger Kevin Jon Heller's clarification and update to a couple of these issues, including that this is merely "collecting information" and is not the formal opening of an investigation. Also that a couple of the laws of war violations I mention, found in Protocol I, are not actually crimes under the ICC Rome Statute. Thanks, Kevin.)

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