The Afghan government has submitted a request to the ICC Office of the Prosecutor to defer the ICC’s investigations in Afghanistan, on the grounds that domestic investigations are taking place into alleged war crimes and crimes against humanity that occurred on Afghan soil. They argue this means there is no need for the ICC investigation. This request was submitted after the Appeals Chamber of the International Criminal Court (ICC) granted jurisdiction over these crimes to the Office of the Prosecutor of the ICC in March 2020. To prove its claim, the Afghan government outlined 151 cases under investigation and sought more time to submit further information and supporting materials about those cases until 12 June 2020. The ICC’s prosecutor accepted the request for more time. AAN’s Ehsan Qaane explains the details of the deferral request and its implications for the ICC investigation in Afghanistan.Afghan security personnel examine damage to a building at a court complex following a suicide attack in Mazar-e Sharif on 9 April 9 2015 during which at least ten people were killed by Taleban attackers. Photo: AFP / Farshad Usyan.
The Prosecutor of the ICC, Fatou Bensouda, informed the judges of the ICC Pre-Trial Chamber on 15 April 2020 that the Afghan government had made a request for a deferral of her investigation into cases that are being investigated or have been investigated by the Afghan national authorities. The request came in response to the prosecutor’s notification to Afghanistan and other relevant states about the decision of the ICC’s Appeals Chamber to authorise an investigation into alleged war crimes and crimes against humanity committed on Afghan territory since 1 May 2003. The investigation also covers crimes committed on the territory of Poland, Romania and Lithuania which have a nexus to the war in Afghanistan since 1 July 2002, ie the CIA’s so-called ‘extraordinary renditions’ of ‘war on terror’ detainees through these states (AAN background here; more background about the ICC decision here and here).
What the deferral request says
In its request, the Afghan government challenges the ICC assumption that it is not conducting genuine investigations. It states that it is investigating or has investigated “nationals or others within its jurisdiction” alleged to have committed war crimes and crimes against humanity:
[T]he investigations and proceedings … cover allegations of crimes committed by Afghan forces, the Taliban and related groups, other terrorist groups and international forces. The alleged crimes that have been or are being investigated by the authorities of Afghanistan cover both war crimes and crimes against humanity including aerial bombardments of civilians, attacks on civilians and civilian properties, the killing and injuring of civilians, detentions and torture, and the destruction of civilian properties.
The government briefly outlines 151 cases as examples for this claim. These include 33 cases of war crimes and three of crimes against humanity involving members of the Taleban and affiliated groups; 26 cases of war crimes against the Afghan National Security Forces (ANSF) and international forces; four war crimes and three crimes against humanity cases involving members of Islamic State for Khorasan Province (ISKP) and; 47 cases of torture committed in Pul-e Charkhi prison (the largest in the country), Bagram detention centre, Kabul detention centre and National Directorate for Security (NDS) detention centres (in Kabul and other provinces). In addition to these, 30 war crimes and five crimes against humanity cases are also being investigated where the identity of the perpetrators is not known at this stage.
Crimes attributed to members of the Taleban and its affiliated groups include murder, torture, burning civilians, hostage-taking, suicide attacks, forced marriage of women and child rape. Cases against the ANSF include the commission of murder, injury, civilian killings (committed by members the NDS) and the destruction of civilian objects. Airstrikes on civilian houses and objects in Kapisa, Nangrahar and Badghis provinces are the crimes attributed to the Afghan air force supported by international troops (“Resolute Support Mission forces”). Crimes being investigated against members of ISKP are suicide attacks, killing civilians and shutting down schools by force.
Of these 151 cases, the government acknowledges that only 28 have been presented before the courts or have resulted in the conviction of the perpetrators. The remaining 123 cases are under investigation and/or arrest warrants against suspects have been given to the Afghan National Police (ANP) and National Directorate for Security (NDS). The request to the ICC did not specify whether any suspects in these 123 cases has been arrested.
The Afghan government did not provide more detail about the cases, but it said it will, before 12 June 2020, submit additional information and supporting materials which covering “both the past and the current national investigation.” The government asked for more time on the grounds that the Covid-19 pandemic has created difficulties in gathering essential documents and materials for the request. In a notification dated 15 April 2020 to the Pre-Trial Chamber, ICC Prosecutor Bensouda accepted the Afghan government’s arguments and extended the submission deadline to 12 June 2020.
What article 18 says
The Afghan government’s request is being brought under Article 18 of the Rome Statute. It is designed to reinforce the principle of complementarity, whereby the court acts to motivate effective domestic investigations into war crimes, rather than to duplicate or supersede them. Once the ICC judges have authorised an investigation, the prosecutor must inform the relevant states, which then have 30 days to respond. The Afghan government has responded by using article 18 (2) to request a deferral, and rule 53 of the Rules of Procedure and Evidence of the ICC. (1)
Article 18 (2) says:
Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States.
Basically, this paragraph says that a state party to the Statute, in this case Afghanistan, has the right to challenge the admissibility of specific cases, but not the whole investigation, by providing evidence that can prove either “its nationals or others within its jurisdiction” are being investigated or have been investigated domestically. If correct, the ICC would not have jurisdiction over the cases of “those persons” if they are subject to a domestic investigation or prosecution.
The article goes on:
At the request of that State, the Prosecutor shall defer the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.
This means that if the prosecutor receives a state’s deferral request and is satisfied that there are credible investigations taking place, s/he “shall defer” any investigation against those persons. If the prosecutor is not persuaded by the claims of the state, s/he can seek judicial authorisation to continue the investigation.
Unchartered legal terrain
This is the first time in history that these provisions (a deferral request) of the ICC core legal documents have been used. Therefore, no official guidance or interpretation exists. An in-depth look at those provisions shows, however, that the prosecutor shall examine the Afghan government’s request based on the what are called ‘complementarity thresholds’, where the court judges the ability and willingness of a state to investigate the individuals most responsible for war crimes or crimes against humanity, as defined in article 5 of the Statute. The prosecutor must assess this on the basis of evidence submitted by the state, which she would also have to verify was genuine. The ‘most responsible individuals’ could mean those who have had a key role in policy making and ordering or condoning the alleged crimes. So in the examination process, the prosecutor might check if the cases presented by the Afghan government are against the ‘most responsible’ perpetrators that her investigations might implicate, and if the suspects are investigated for the commission of the same type of conduct that she would likely target. Therefore, the prosecutor in her 15 April notification mentioned that after receiving the promised information and supporting materials she will decide if these materials affect “the scope” of her investigation.
In 2017, before the ICC Prosecutor filed her application to the Pre-Trial Chamber to authorise an investigation in Afghanistan, the Afghan government submitted details of 15 cases to the ICC Office of the Prosecutor. Those cases that were investigated by Afghan institutions covered crimes perpetrated by Afghan soldiers, members of the Haqqani network and members of militia groups. Except for Anas Haqqani and Hafez al-Rashid, two senior members of the Haqqani network released in 2019 in a prisoners/hostage swap, the other perpetrators were low-profile individuals and their criminal acts did not amount to war crimes or crimes against humanity. (AAN obtained a summary outline of those cases from a source in the Afghan Ministry of Foreign Affairs at the time.)
Other attempts to put off the court
This is not the first time that the Afghan government has tried to prevent the ICC investigation in Afghanistan. Since its first direct communication with the ICC in 2016, the Afghan government has always stated that providing justice to the victims of war crimes and crimes against humanity related to the Afghanistan conflicts is part of its domestic policy agenda. Before the ICC Prosecutor sought the Pre-Trial Chamber’s permission to start an investigation in November 2017, the Afghan government sent at least four delegations to meet ICC officials in person. President Ashraf Ghani met Fatou Bensouda twice, at the side of the Munich Security Conference in February 2017 and at the side of the United Nations General Assembly in New York in September 2017.
The core message from these delegations and from President Ghani was that the Afghan government was willing to investigate the alleged war crimes and crimes against humanity but needed time to build its national capacity. The aim was to convince the ICC’s Prosecutor to not seek authorisation from the ICC Pre-Trail Chamber (for more background, read AAN’s reports here and here).
To enhance its national capacity, the Afghan government has taken some practical steps to demonstrate its intent to prosecute war crimes, for instance by including criminal acts under article 5 of the Rome Statute in its revised penal code that came into force in 2018; establishing the International Crimes Investigation Unit (ICIU) within the structure of its Attorney General Office to investigate war crimes and crimes against humanity and; by translating the Rome Statute into its national languages (Dari and Pashto) and publishing it in its official gazette in 2018. These steps were used as arguments to defend the Afghan Government’s position that it was fulfilling its commitments to investigate, both under the Rome Statue and national law, as reflected in its statement presented during the appeals hearings at the ICC in December 2019. Indeed, these are steps towards more accountability on war crimes in Afghanistan, but they were not sufficient, for several reasons, to demonstrate to the ICC that the government was willing and able to investigate and prosecute.
First, and most importantly, the ‘amnesty law’ passed by the Afghan parliament in 2007, and in force since 2008, still exists (see AAN’s report for more background). The law gives impunity to those who committed war crimes and crimes against humanity since 1978, including for such crimes allegedly committed after 1 May 2003 which come under the temporal jurisdiction of the ICC. Similar concerns about impunity have been raised in relation to the Taliban prisoner release initiative in relation to the ongoing peace efforts (read AAN’s report for more background). Secondly, the Afghan government’s International Crimes Investigation Unit, which was tasked to investigate war crimes, has very limited capacity in terms of quantity and quality; its personnel of 22 have almost no professional experience of international criminal law or the documentation of international crimes, a highly specialised and complex area of law. The unit has not yet filed a case before any court. Thirdly, no law has even been passed that identifies any court to which that unit can refer its cases. Fourthly, investigating war crimes and crimes against humanity requires protection mechanisms for victims and witnesses which have also not yet been provided by any Afghan law. Realistically, given the current political turmoil in Afghanistan, it would be challenging for the Afghan government to have the political strength to prosecute past or current officials at the most senior level who might have command-level responsibility for war crimes.
What the request does not cover
Among the 151 cases that the Afghan government outlined in its deferral request, none covers the alleged crimes attributed to the United States military forces or its Central Intelligence Agency (CIA) in the ICC Prosecutor’s application for her own investigation. The Afghan government has signed Status of Forces Agreements with the US, NATO and other foreign governments that give them the exclusive right to prosecute their own soldiers (the text of the agreement with NATO here, see in Article 11).
After a ten-year preliminary investigation, the ICC Prosecutor’s application was submitted to the Pre-Trial Chamber in November 2017 and then to the Appeals Chamber in December 2019. Based on these contents, the ICC Appeals Chamber judges authorised her to commence an investigation in Afghanistan.
In the application, the US military forces and the CIA, along with the Taleban and its affiliated group (the Haqqani network) and the Afghan National Security Forces, especially the NDS, were named as the main alleged groups in committing war crimes and crimes against humanity.
In paragraph 187 of the application, it is said:
The information available provides a reasonable basis to believe that in the period since 1 May 2003, members of the US armed forces have committed the war crimes of torture and cruel treatment […], outrages upon personal dignity […] and rape and other forms of sexual violence […].[…] In the period since 1 July 2002, members of the CIA have committed the war crimes of torture and cruel treatment […]; outrages upon personal dignity […]; and rape and other forms of sexual violence […]
Due to these allegations, the US took a hostile position against senior ICC staff, including the prosecutor and judges (for more background, read AAN’s report). The US argued that the ICC did not have jurisdiction over US citizens as the US is not a signatory to the Rome Statute. The ICC Prosecutor’s argument has been that the ICC has jurisdiction as the US citizens allegedly committed war crimes on the territory of Afghanistan which is a state party to the ICC. However, since the US rejects any ICC jurisdiction over its citizens, it has not submitted a deferral request to the ICC. The Afghan government’s request does not cover alleged cases attributed to US citizens, so the prosecutor will continue her investigation in cases concerning members of the CIA and US armed forces.
The Afghan government’s request does not mention crimes committed by the Hezb-e Islami led by Gulbuddin Hekmatyar, nor al-Qaeda, both of which are named as groups involved in the Afghan conflict since 1 May 2003. Hekmatyar and the Afghan government made peace in 2017, the same year the ICC Prosecutor submitted her application. Since then, no crimes have been attributed to him or his party. The ICC Prosecutor clarified in her application that these groups are not the focus of her investigation at this stage. However, the scope of her investigation is, in general, not limited. If she finds evidence during her investigation about any of these groups having committed war crimes or crimes against humanity as grave as the ICC has targeted in connection with other parties in the post-2003 war, she is able to establish case/s against member/s of these groups.
The prosecutor also says that ISKP is not a focus of her investigation at this stage, although the Afghan government’s deferral request did include seven cases against members of ISKP. However, since 2017, ISKP has claimed responsibility for many attacks against civilians, particularly against members of the Sikh and Shia communities. Its most recent attack was on 25 March 2020 against a Sikh temple in Kabul, which resulted in 26 deaths (AAN report here). As a reaction to the attack, on 4 April 2020 the Afghan government announced that the leader of ISKP, Mawlawi Abdullah Orakzai, and 19 members of its leadership were arrested in Kandahar province. So far, no news about the investigation against them has been reported.
After the NDS publicly announced the arrest of Orakzai, the Ministry of Foreign Affairs of Pakistan summoned Atif Mashal, the Afghan ambassador to Pakistan. Through him, Pakistan asked Afghanistan to extradite Orakzai to Pakistan for “further investigation.” The request was rejected by the Afghan government on 11 April 2020. According to the Pakistani Ministry of Foreign Affairs’ statement, Orakzai “was involved in anti-Pakistan activities in Afghanistan.” Orakzai holds Pakistani citizenship, but as the leader of ISKP he allegedly committed war crimes and crimes against humanity on Afghan soil. According to international law, including the Rome Statute and Afghan laws including the Afghan Penal Code, investigating crimes that occurred on Afghan soil comes under Afghan prosecutorial and judicial jurisdiction.
What happens next
The ICC Prosecutor, in her notification to the Pre-Trial Chamber, stressed that she would wait until 12 June 2020 to receive further information from the Afghan government and then she “will only be able to consider whether the information […] has an impact on its own intended investigation” or not. She added that at this stage and due to the Covid-19 outbreak, her investigation is on hold, and she “is not taking active investigative measures in relation to the scope of” the Afghan government’s request.
The Afghan government has much to prove by 12 June to demonstrate credible war crimes investigations against individuals at the highest level that might negate the need for an ICC investigation. If the information it provides is not sufficient to convince the prosecutor, she will seek authorisation from the ICC Pre-Trial Chamber to continue with her investigation. In this situation, both parties (the prosecutor and the Afghan government) have the right to appeal any decision from the judges. However, if the prosecutor is persuaded, she will defer the investigation into the relevant cases, pursuant to article 18 (3), which “shall be open to review by the prosecutor six months after the date of deferral or any time when there has been significant change of circumstances based on the State’s unwillingness or inability genuinely to carry to the investigation.”
As a state’s deferral request is limited to specific cases which could be similar to the prosecutor’s targeted cases, the prosecutor could still investigate those cases that the Afghan government’s request does not cover. So even if the Afghan government wins this argument, which is itself a challenge, it is probably too late for the Afghan government to prevent the entire ICC investigation in Afghanistan.
Edited by Thomas Ruttig, Rachel Reid and Christian Bleuer
(1) When a state requests a deferral pursuant to article 18, paragraph 2, that state shall make this request in writing and provide information concerning its investigation, taking into account article 18, paragraph 2. The prosecutor may request additional information from the state.
This article was last updated on 13 May 2020
International Criminal Court