While Ms. Bensouda’s inquiry would have mostly focused on large-scale crimes against civilians attributed to the Taliban and Afghan government forces, it also would have examined accusations of abuses by the C.I.A. and American military personnel including actions at secret C.I.A. detention centers in Afghanistan, Poland, Lithuania and Romania.
In a clear reference to the black sites, contained in the decision by the judges to abandon the investigation, they wrote that Ms. Bensouda had wanted to look at how C.I.A. agents “mistreated” prisoners “allegedly with a view to forcing confessions, obtaining information or retaliating for” the 9/11 attacks.
The prosecutor, they wrote, argued there was “a reasonable basis to believe that, since May 2003, members of the U.S. armed forces and the C.I.A. have committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence pursuant to a policy approved by the U.S. authorities.”
The judges wrote that the prosecutor relied on studies conducted by the Pentagon and Congress, notably by the Senate’s Intelligence Committee, an apparent reference to the public portion of the so-called Senate Torture Report that studied the C.I.A.’s black site program.
The judges also wrote that the prosecutor submitted material that appeared to catalog violations of international law by the C.I.A., including inflicting “extremely cruel, brutal and gruesome” physical and mental pain on its captives; refusing to let captives sleep, eat, drink and pray; as well as shaming captives through “acts of a sexual nature.”
Although the United States is not a member of the International Criminal Court, established nearly two decades ago, American governments have cooperated with the court on some of its work in other investigations.
Americans suspected of having committed crimes in countries that are members of the court are potentially subject to prosecution. Afghanistan, Poland, Lithuania and Romania are all members of the court.
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