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For the first time, the International Criminal Court (ICC) is poised to open an investigation that explicitly includes alleged crimes by U.S.personnel, setting up a possible confrontation between the United States and the court. Specifically, the ICC prosecutor is preparing to launch a full investigation in Afghanistan that will scrutinize U.S.detention practices in that country, but perhaps also at alleged "black sites"in Poland, Lithuania, and Romania. In November, the prosecutor said a decision on whether to open the Afghanistan investigation was imminent, and an announcement is expected soon.

ICC reports make clear that the office is interested in both CIA and DOD activities, particularly during 2003-2005. The prosecutor appears focused on whether there was a high-level U.S. policy of torture, and her office recently noted that it had expanded the scope of her examination to include alleged U.S. torture at sites outside of Afghanistan but with a connection to the conflict there. Given this focus, it is conceivable that the office might seek to prosecute former high-level U.S. officials.

Whatever its eventual outcome, an investigation of U.S. conduct establishes an important precedent regarding international criminal scrutiny of American personnel and will be of intense interest to the Pentagon, the intelligence community, and the State Department. The forthcoming investigation will also test the Trump administration's approach to the ICC and, more broadly, its attitude to key multilateral organizations.

The legal fault line between the United States and the court is relatively straightforward. The ICC maintains that it has jurisdiction over American conduct in Afghanistan because the latter is a member state that has granted the ICC jurisdiction over certain crimes on its territory. The American position, in contrast, has been that the ICC cannot exercise jurisdiction over Americans because the United States has not joined the Rome Statute, the 1998 treaty that created the court. While sovereign nations have the authority to try non-citizens who have committed crimes against their citizens or in their territory, a senior State Department official stated in 2002, the United States has never recognized the right of an international organization to do so absent consent or a U.N. Security Council mandate.

Both arguments are plausible, but the ICC has the much stronger legal hand. The U.S. position has limited support internationally and would almost certainly fail if adjudicated by ICC judges. The ICC and most legal scholars believe that ICC member states can delegate to the court the criminal jurisdiction they unquestionably have over their own territory.

A few observers, most notably Michael Newton at Vanderbilt Law School, have advanced a more nuanced argument against ICC jurisdiction based on the status of forces agreements (SOFAs) that Afghanistan entered into with the United States and NATO. Newton argues that Afghanistan ceded criminal jurisdiction over Americans when it agreed to these SOFAs and cannot therefore delegate that jurisdiction to the ICC. This argument has been less discussed but also has a low probability of success at the ICC (for a thoughtful response to Newtons argument, see here).

The chances of the United States successfully challenging ICC jurisdiction through the courts own processes are therefore slim. But that reality leaves open the policy question of how the United States should respond to ICC scrutiny.

For the ICC and many of its supporters, the appropriate U.S. response is simple: fully investigate and prosecute those responsible for its detention practices in the years following the 9/11 attacks. The U.S. government has undertaken several reviews, but they were either non-criminal in nature or limited so as to avoid review of high-level decisionmaking. With genuine domestic prosecutions underway, the United States would be protected by the complementarity principle and would not have to worry about the ICC investigation.

Whatever the merits of this argument, I assume for the purposes of this analysis that additional U.S. investigations and prosecutions are unlikely for a combination of legal and political reasons. I also assume that the prosecutor will conclude that U.S. investigations have been inadequate. Given those parameters, I see three broad options for the Trump administration:

Option 1: Delay and defer

The opening of a formal investigation in Afghanistan will generate headlines and will require some response from the Trump team. But nothing about the launch of the investigation compels the United States to take any affirmative steps; the prosecutors critical decisions regarding which individuals to prosecute are likely years away. For that reason, the administration could mostly choose to ignore the opening of an investigation.

In so doing, the United States could avoid (at least for now) a confrontation with a court that has broadly served U.S. interests and values by addressing mass atrocities in places like Sudan, the Central African Republic, the Democratic Republic of Congo, and Libya. During the latter half of George W. Bushs administration and the entirety of the Obama administration, the United States forged a wary but productive working relationship with the court (within limits set by U.S. legislation). During the Obama years, senior officials interceded with the prosecutor to discourage any investigation of Americans but kept their communications quiet and avoided any open discord.

The Trump administration could effectively continue that policy by adopting a minimalist approach to the Afghanistan investigation and hoping that the prosecutor never brings charges against American personnel. Without U.S. assistance, after all, it is probable that the prosecutor will be unable to develop enough information to bring charges against American officials. At the very least, the United States could defer a decision on how to respond until it has no choice.

This course has the advantage of avoiding the diplomatic reverberations that would result from confronting the ICC more openly. But a delay and defer strategy carries some risks for the United States. The ICC may take a muted response as evidence that the United States has essentially acquiesced to its jurisdictional claims, a belief that could set the stage for damaging confrontations later.

Option 2: A positive red line

For a variety of reasons, the United States may decide it needs to frontally address the question of ICC jurisdiction over its nationals. One factor encouraging a robust response is the knowledge that Israel may face an active ICC investigation in the coming years, as the ICC has initiated a preliminary examination of alleged crimes in Palestine. Any eventual investigation there might include charges against senior Israeli officials for settlement policies and could therefore be politically explosive. If there is going to be a showdown about court jurisdiction over non-member state nationals, it may be best to have it now.

But there are several ways of confronting the issue of the ICCs jurisdiction, and it is conceivable the United States could vigorously defend its position while also preserving a positive relationship with the court

One way to thread this needle would be to downplay the legal disagreement about the courts jurisdiction and rely instead on arguments about how the prosecutor can employ her broad discretion to select cases within an investigation.Specifically, the United States could develop a policy paper making the case against exercising jurisdiction over U.S. nationals in Afghanistan. The prosecutors office has released a policy paper on its strategy for selecting cases within a situation, and the United States may want to frame its argument in terms of the criteria outlined there. (One potential argument would be that scrutiny of conduct more than a decade ago by U.S. personnel would have no deterrent impact on the large-scale ongoing criminality in Afghanistan.)

But a unilateral American approach to the court will likely have limited impact. The prosecutor will understandably view the U.S. arguments as a self-interested attempt to avoid scrutiny. Moreover, a strategy based on the specifics of the Afghanistan situation would not address the broader U.S. concerns about potential future ICC jurisdiction over non-member state nationals.

Internationalizing the issue could be more effective. While more than 120 states have joined the court, most of the worlds population (and most national military forces) are in non-member states. The administration could seek diplomatic support for its position that the prosecutor should avoid cases against non-member state nationals. A variety of influential non-member statesincluding China, India, Israel, Russia, and Israelmight be persuaded to construct a united front on the issue. In essence, these states could suggest a pragmatic compromise with the court by signaling their broad support for the courts goals and operations while emphasizing the importance of a states consent to jurisdiction over its nationals.

Any limitations on the ICCs reach will of course spark concerns about double standards. During the Rome Statute negotiations, a significant number of states advocated universal jurisdiction for the court and accepted the existing jurisdictional structure reluctantly. Concerns about unfairness in the application of international justice have been accentuated by Security Council referrals, which have allowed non-member states (most notably China, Russia, and the United States) to effectively instrumentalize a court they have not joined. This situation is understandably frustrating to many ICC members, and some have questioned the advisability of additional Council referrals. To address these concerns, the United States, China, and Russia might consider committing not to refer additional situations unless and until they join the court.

The ICCs current fragility might encourage the prosecutors office to at least consider discretionary limits on the scope of its investigations. The fact that the prosecutor has avoided prosecutions of non-member state nationals to this point (other than when backed by a Council referral) suggests that it recognizes the sensitivity of the issue. It is also conceivable that some key ICC member states (and major funders)including Japan, the United Kingdom and Francewould quietly support such a compromise as being in the best interests of the court.

Pursued carefully, this strategy has a modest chance of success. It would not force the prosecutor to surrender her view of the courts formal jurisdiction and might appeal to those in The Hague concerned about the institutions long-term viability.

Option 3: A negative red line

It is likely that some voices in the Trump administration will advocate a more confrontational stance toward the court. Several advisers in the presidents orbit, including former U.N. ambassador John Bolton, have supported a strategy of undermining and delegitimizing the ICC. Voices in the Pentagon have also favored a more robust defense of U.S. sovereignty. Because support for the court in Washington is weak, there will be few domestic political repercussions for attacking an international court that may be targeting Americans.

If the United States chooses this approach, it could lead with its legal objections to any ICC exercise of jurisdiction over Americans and delineate concrete consequences if the prosecutor continues to investigate American conduct. The U.S. government has a variety of levers it could use (or threaten to use) to disrupt ICC activities. These measures would include ceasing all technical cooperation with the court, supporting additional Congressional legislation against the ICC, encouraging undecided states not to ratify the Rome Statute, pressuring existing ICC member states to leave the court, and using its veto on the Security Council to scupper any new referrals.

However popular at home, this approach would likely generate strong opposition abroad, particularly in Europe and Latin America, where support for the court remains strong. This opposition might in turn complicate other U.S. diplomatic and security initiatives. While the costs could be significant, the benefits likely would not be. Even an energetic and multifaceted U.S. campaign against the court would almost certainly fail to cripple it.

Those in the Trump administration inclined toward open warfare with The Hague might benefit from reviewing the recent history of U.S. diplomacy toward the court. After pursuing aggressive steps toward the ICC between 2002 and 2005, the Bush administration in its second term moderated its position to avoid diplomatic fallout with many of its traditional allies. There is no reason to return to a situation of unproductive animosity when there are other viable options to consider.

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US Options for Responding to ICC Scrutiny in Afghanistan - Lawfare (blog)

New York Times

Afghanistan Police Surround Vice President's House New York Times KABUL, Afghanistan Afghan soldiers and policemen surrounded the house of Vice President Abdul Rashid Dostum on Tuesday in an apparent effort to arrest nine of his aides accused of kidnapping and raping a political opponent on his orders. and more »

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Afghanistan Police Surround Vice President's House - New York Times

Afghanistan is set to lay out stringent penalties for bacha bazi sexual slavery and abuse of boys for the first time, officials say, in a landmark move against the deeply entrenched practice.

AFP revealed last year how the Taliban were exploiting rampant bacha bazi in police ranks to mount deadly insider attacks, exposing a hidden epidemic of kidnapping of young boys for institutionalised sexual slavery.

The revelations intensified longstanding demands by campaigners for Kabul to enact an incisive legal provision to curb bacha bazi literally boy play which has seen a striking resurgence in post-Taliban Afghanistan.

A raft of punishments will now be listed in Afghanistans revised penal code from up to seven years in jail for sexual assault to capital punishment for aggravated cases such as violating more than one boy.

There is an entire chapter on criminalising the practice (bacha bazi) in the new penal code, Nader Nadery, a senior advisor to President Ashraf Ghani, told AFP.

The code is expected to be adopted any time this month. This is going to be a significant step towards stopping this ugly practice.

Graphic showing documented cases of sexual slavery kidnappings in Afghanistan. (AFP)

A draft of the chapter seen by AFP, titled Driving children towards moral corruption, states that bacha bazi victims cannot be prosecuted, a significant caveat in a nation where sex assault victims often face punishment.

Afghanistans criminal law previously only prohibited pederasty and sex outside of marriage, which rights campaigners said did not sufficiently address the problem of bacha bazi.

This chapter clearly defines bacha bazi as a crime, leaving no room for ambiguity, Ghanis legal advisor Nasrullah Stanekzai told AFP, waving printed copies of the revised penal code in his hand.

Aside from police commanders, warlords, politicians and other members of the Afghan elite often keep bachas as a symbol of authority and affluence.

The young boys, sometimes dressed effeminately with makeup and bells on their feet, can be used as dancers at private parties and are often sexually exploited.

AFPs investigation found the Taliban were using the boys keen on revenge and easy prey for recruitment to infiltrate security ranks and mount crippling insider attacks on police in southern Afghanistan. The insurgents deny the claim.

21st century slaves

Before the penal code, activists pushed for years for special legislation on bacha bazi, with scant hope of getting it through parliament as they suspect the practice is prevalent among lawmakers themselves.

I have received calls from MPs that say they will never let a bacha bazi law pass in parliament, said Soraya Sobhrang from the Afghanistan Independent Human Rights Commission. This is a battle to save 21st century slaves.

The penal code is likely to be passed by presidential decree during the ongoing parliamentary recess. But Sobhrang worries some lawmakers may try to water it down when it is later subjected to a parliamentary review.

Afghanistan has a poor record of enforcing similar provisions, including a law to eliminate violence against women and another to ban the recruitment of child soldiers, especially when the perpetrators are powerful.

Explicit criminalisation in law of the heinous practice of bacha bazi is commendable, but implementation of laws in Afghanistan has been questionable, the All Survivors Project, a global fact-finding effort into sexual violence against males in conflict zones, told AFP.

How is the government planning to monitor, investigate and hold accountable those responsible for abusing boys under this new legal provision?

Graphic locating documented cases of sexual slavery kidnappings in Afghanistan. (AFP)

As Afghanistans conflict escalates, critics have said there appears to be no will to act against abusive security officials who are seen as the lesser of two evils in the fight against insurgent groups.

Western officials have privately conceded to AFP that some Afghan commanders accused of bacha bazi are too strategic to be removed from their posts.

But growing public scrutiny of the practice, once shrouded in shame and silence, is forcing authorities to act in some areas.

Earlier this month, the government sacked Shah Mirza Panjsheri, police chief of the volatile Dasht-e-Archi district in northern Kunduz province, after a video of his bacha bazi party surfaced on social media.

He was kidnapping young, beautiful boys and forcing them to dance in bacha bazi gatherings, a Kunduz government spokesman told AFP.

When we heard about this we dismissed him immediately, he said, adding that he was the first high-ranking police official in Kunduz to be sacked for this practice.

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Afghanistan to set penalties for abuse of boy sex slaves - Hindustan Times

Afghanistan have crumbled in sensational fashion in the third one-day international against Zimbabwe, losing 5-5 in a stunning collapse to hand the hosts a three-run win in Harare.

The result means Zimbabwe keep their hopes in the five-match series alive, with the ledger now sitting 2-1 in Afghanistans favour.

Cruising at 5-121 and needing just nine runs from 23.3 overs to seal the series, Afghanistan fell in a heap as seamer Chris Mpofu (3-24) and left-arm spinner Sean Williams (3-15) ran riot.

Mpofu started the panic when he had Samiullah Shenwari (29) and Najibullah Zadran (first-ball duck) caught behind in successive balls.

Quick Single: Beauty of Pune pitch in eye of beholder

The 31-year-old quick struck again in his next over after Williams had chimed in with the scalp of Mohammad Nabi, before Mpofu took the final wicket to complete an unlikely victory.

Earlier, Tarisai Musakanda (60) and Malcolm Waller (36 not out) were two of only three Zimbabwe batsmen to reach double-figures as the home side were skittled for 129 in 32.4 overs.

Afghan seamer Gulbadin Naib (4-27) did best with the ball while Asghar Stanikzai top-scored for the tourists with 31.

The fourth ODI is on Friday and the final match on Sunday, both at the Harare Sports Club.

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Afghanistan lose 5-5 in nightmare collapse - cricket.com.au

Laura Cesaretti

Laura Cesaretti is an Italian freelance journalist based in Afghanistan. She has previously worked in Turkey and Lebanon, covering the Syrian humanita

Afghanistans Khorasan region is often associated with war and social conservatism, yet it has a rich history of religious tolerance and a passion for art.

Whether known to be the graveyard of empires or the land of lions, Afghanistan has always been perceived as the motherland of fearless, rural fighters. Yet the view of a mountainous, ruthless country does not give justice to the beauty of this historic land, regulated for centuries by codes and institutions that incorporated progressive thinking. Over 30years of war and an unstoppable campaign against local tribal customs have contributed to enforce this conventional wisdom, portraying Afghans as conservative extremists who oppose any form of modernization.

Not surprisingly, this stereotype is also used by the Islamic State (IS). The group first set foot on Afghan soil in 2014, and it announced the establishment of the so-called Province of Khorasan the following year. The people of Khurasan in general love Islam and warfare, Shaykh Hafidh Said Khan, the appointed wali of Khorasan, told the ISDabiqmagazine, and because of this, the region has a dormant force for supporting tawhid and jihad.

The use of the term Khorasan is not casual. Historically, it refers to a broader area that includes northern Afghanistan and other Central Asian countries such as Uzbekistan and Turkmenistan. The actual boundaries, however, have been the subject of tales and narratives that extend them to include the southern-central provinces of Afghanistan.

A controversialhadith (sayings of Prophet Muhammad), in particular, has later engraved the region with a deep symbolic meaning across many Islamist groups. It is said that an army will rise up from this region bearing a black banner, and it will lead Muslims to the final victory against the enemies of Islam. This has encouraged speculation, particularly referring to Afghanistan, spreading the belief that the Taliban or other groups like IS could be the prophesied army.

What many, including the Islamic State today, ignore is how the Afghan Islamic tradition is profoundly unrelated to this apocalyptic view. Throughout history, Afghan nationalist movements have been inspired by an Islam that did not fear to include elements of Hinduism and Zoroastrianism, for centuries making Afghanistan one of the most spiritual and tolerant religious crossways. Even nowadays, in the old city of Kabul you can find an old temple where people worship Baba Ratan, a Sufi saint for Muslims and a guru for Hindus and Sikhs, famous for having professed miracles across India and Afghanistan, including Jalalabad, Kabul, Peshawar and Khorasan.

The impact of his teachings and poems is still alive in todays Afghanistan, along with the spiritual footprint of other Sufi thinkers. Popular poetry, strictly related to religion and society, uses vocabulary of human rights and national pride, and Sufi scholars are believed to be the real architects of Afghan society.

This ascetic approach toward life is not relegated to the intellectual Afghan class. Afghan politicians recite lines of poetry in their speeches, and farmers use their birds as metaphors for life, recalling, perhaps, the lines that Iman Ghazali, the great 11th-century Sufi, wroteduring his last state of illness: A bird I am: This body was my cage/But I have flown leaving it as a token. Even conservative clerics often use poems in Friday prayers, and the most violent warlords prefer to have pictures of themselves taken with flowers rather than an AK47.

Many Muslims around the world do not agree with the way of Sufism, and this is saying a lot about Afghan people. Things have changed in the past years, but most of our people are still very moderate, compassionate and caring about each other. We are one of the few cultures which have to allow Sufism to grow, explains Mahmud Kaber Khalili, grandson of the great poet Khalilullaj Khalili and son of the political leader Masood Khalili. In his book,Afghanistan Decoded, Mahmud Khalili has dedicated an entire chapter to his familys historicalhujraa meditation room built in 1962 decorated only by poems.

Even during wartime, the hujra has been preserved with the highest respect by mujahedeen and Taliban alike. Poetry, in fact, has always been considered to have a powerful social role in Afghanistan, and people from different economic and social background pay the same level of respect to poets. Poetry festivals are held regularly in many provinces of the country, even the ones controlled by the Taliban, who have a long-standing poetic tradition.

Poetry of the Talibanbrings together over 200 poems about grief and battle, as well as love and mysticism. Contrary to music, banned under the Taliban as religious propaganda, poetry had little to do with political ideology, and more with local traditions that characterized the Afghan identity.

The Afghanistan Ministry of Information and Culture has repeatedly lamented this misinterpretation of Afghan culture, and how the international community has paid so little attention to this fundamental peculiarity of the Afghan life. We are the victim of terrorism, says the spokesperson of the ministry, Haroon Hakimi. It is unfortunate that birthplace of so many scholars who were spreading peace and love to the world has been affected by war, and known mainly for that.

Sufism, in fact, has been used as a counterterrorism strategy by the West, but not as a source of interpretation and understanding of a great civilization. Khorasans Sufi intellectuals and poets such as Rumi are popular in the West, but not well-known for their religious beliefs and spiritual interpretations.

Indeed, the Khorasan region is also homeof rigid interpretations of Islam, such as the Deobandi school, to which groups such as the Taliban belong. This interpretation is not much different from the Wahhabi teachings that inspired the Islamic State, and yet the space for political and social debate has always characterized this part of the region.

Baqi Hilaman Ghaznawi, a Sufi scholar and writer of many books in Dari and Pashto, explains: Taliban are not al-Qaeda or Daesh [Islamic State]. In the 1990s, when they arrived, they respected our spiritual traditions.

It is this spiritual narrative that characterizes the Khorasan region more than war and conservatism. The aesthetic passion for poetry and emotion of Afghans is something that can be felt in every aspect of their every day like. Yet neither the West nor the Islamic State are ready to recognize it.

The views expressed in this article are the authors own and do not necessarily reflect Fair Observers editorial policy.

Photo Credit:farid_ep

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Afghanistan: The Stolen Tale of Khorasan - Fair Observer