Afghanistan Analysts Network – English

Rights and Freedoms

An ICC Delay: Court postpones decision on whether to investigate war crimes in Afghanistan

Kate Clark 5 min

The International Criminal Court has announced a delay in deciding whether or not to authorise an investigation into war crimes and crimes against humanity by American and Afghan government forces and Taleban and other insurgent groups in Afghanistan. A decision had been expected during the last month, but a routine changeover of the Court’s judges means a new panel of judges now has to start sifting through all the material gathered on Afghanistan before it can come to a decision. As AAN’s Kate Clark reports, Afghans will have to wait weeks or even months to hear what will happen.

More than one third of security detainees held by Afghan government forces are being tortured, according to the United Nations. The ICC may investigate this war crime. (Photo: Pajhwok)

The decision by the judges of the Pre-Trial Chamber of the International Criminal Court (ICC) on whether or not to authorise an investigation in Afghanistan will be political dynamite whichever way it goes. If authorised, the main task of the team of investigators would be to collect victim and witness statements and other evidence to build cases against specific individuals that could lead to their prosecution. (The ICC prosecutes individuals, not governments or armed groups or organisations.)

The most powerful country potentially under the spotlight, the United States, has robustly asserted that the Court has no jurisdiction over its citizens. (1) The Afghan government, as a party to the Rome Statute has said it will cooperate with the Court, but has consistently argued that now is not the time for an investigation because “stability” is the overriding need of the moment (see for example Ambassador Mahmoud Saikal’s speech to the UN General Assembly in late 2017. Kabul also does not want ICC actions to discourage US forces from staying in Afghanistan and helping fight the Taleban.

At the same time, the ICC, criticised for only ‘going after’ African countries (see for example, here), while avoiding the powerful nations of the world, would suffer further damage to its prestige if it was seen to be shying away from investigating Afghanistan, given the allegations against the CIA and US military. This could be particularly the case in Afghanistan itself where, as the ICC has admitted (AAN analysis here), it’s outreach had been considered poor and it, with no presence on the ground, has had not managed to have a “clear voice” in the Afghan media.

Whichever way the Pre-Trial Chamber decides will have political repercussions. However, there is nothing to suggest that the delay in making a decision was caused by anything other than for bureaucratic reasons. The three judges from the Pre-Trial Chamber had failed to come to a decision before routine personnel changes were due three weeks ago.

The ICC has eighteen judges, each of whom serves for nine years, and on 16 March 2018, six judges who had finished their terms left the Court and six new judges were sworn in. The Court had to re-assign the decision on Afghanistan to a new panel of judges (see details here). The new panel has had to start from scratch, wading through and considering all the material gathered on Afghanistan over the last decade. An ICC press release warned “it cannot be determined at present how many more weeks/months this process will take.”

The delay has come at a critical stage in proceedings. On 3 November 2017, ICC Chief Prosecutor Fatou Bensouda had requested (AAN report here) that the judges of the Pre-Trial Chamber authorise an investigation into alleged perpetrators of war crimes and crimes against humanity in Afghanistan and three other countries which she said had a ‘nexus’ with the Afghan conflict, Lithuania, Romania and Poland. The CIA had black sites in these three countries and Afghanistan, rendering detainees between the sites and torturing them. Bensouda had earlier reported, in November 2016, that the use of torture by Afghan and American forces and a wider range of war crimes by the Taleban and other insurgent groups, including murder and intentionally attacking civilians, did pass the thresholds set by the Court to determine whether an investigation was merited.

After Bensouda’s November 2017 request for an investigation, the Court sought the views of victims. They were given just two months, December 2017 and January 2018, to make their views and experiences known to the Court and, overwhelmingly, called for an investigation. They spoke about having suffered murder, rape, forced disappearance, pillage and attacks against themselves as civilians. They told the Court they wanted an investigation to end to impunity, prevent future crimes, to find out about the forcibly disappeared and for victims’ voices to be heard (see AAN analysis here and a redacted version of the victims’ responses published in February, here).

The old panel of judges of the Pre-Trial Chamber had then spent the weeks after the victims’ responses were collated weighing up whether or not to authorise an investigation. It had been hoped their decision would come by the start of March. It did not come in time, so that task has now fallen to the new panel. It is made up of the following three judges:

  • Antoine Kesia-Mbe Mindua (Presiding Judge) from the Democratic Republic of Congo, who joined the ICC in 2015. He served as a legal officer with the International Criminal Tribunal for Rwanda in Arusha, Tanzania (1996 to 2001) and as a trial judge in the International Criminal Tribunal for the former Yugoslavia in The Hague (2006 to date) (see his biography here).
  • Tomoko Akane, a Japanese judge with extensive prosecuting experience (see media reporting here and her official biography here). She has just joined the ICC.
  • Rosario Salvatore Aitala, an Italian, also newly selected. According to his biography, he has specialist experience prosecuting cases of corruption against the Mafia and crimes against vulnerable persons, of transnational and financial investigations and international cooperation on criminal matters. Aitala has worked in Afghanistan as coordinator of the Italian Judicial Programme for Afghanistan (Italy was the ‘lead nation’ on judicial reforms in the early years of the post-2001 administration). The Italian Newspaper of the United Nations reported that he “drafted criminal legislation and established Sections for crimes against women and children in the Office of the General Prosecutor in Kabul and in Herat.” The Italian justice programme was not well regarded, but Aitala will, at least, bring his personal knowledge of Afghanistan to this task. (2)

If the new panel does not reach a decision by 20 July this year when the Court goes into its summer recess, there will be a further delay until it resumes work on 13 August. Sooner or later though, whether after weeks or months, the judges will come to a decision, to authorise an investigation in Afghanistan – or not. Either way, there will be both criticism and applause.

Edited by Thomas Ruttig


(1) The US is not a state party to the Rome Statute which established the International Criminal Court. However, according to the Rome Statute, the ICC has jurisdiction over individuals not only if the “person accused of the crime is a national” of a state party to the Rome Statue, but also if “the conduct in question occurred” on the territory of a state party. In other words, because Afghanistan is a signatory to the Rome Statute, the Court has jurisdiction over citizens of any nationality who commit war crimes or crimes against humanity on its soil (quotes from Article 12 (2) of the Rome Statute).

(2) There are two Pre-Trial Chambers. This one, known as Pre-Trial Chamber II is also responsible for considering the following situations:

  • Central African Republic I
  • Central African Republic II
  • Republic of Uganda
  • Darfur, Republic of the Sudan
  • Republic of Kenya
  • Republic of Côte d’Ivoire
  • Republic of Burundi

Pre-Trial Chamber I is considering the situations in :

  • Democratic Republic of the Congo
  • Libya
  • Republic of Mali
  • Georgia
  • Gabonese Republic
  • Registered Vessels of Comoros, Greece and Cambodia








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