The saga of the stalled International Criminal Court (ICC) investigation into war crimes allegedly committed as part of the Afghan war continues. Following a high-level meeting in The Hague last month, the Afghan government is still dancing around the issue, as it reacts to competing pressure from the ICC, the United States (which does not want its forces investigated), the Taleban and Afghan civil society. As AAN’s Ehsan Qaane reports, the government, which is hoping to head off the ICC investigation, gave statements following the meeting that were incoherent and legally flawed. Meanwhile, out of patience and in the aftermath of two horrendous attacks which together left hundreds of school children killed and injured the Afghanistan Independent Human Rights Commission (AIHRC) has appealed to the United Nations to support investigations into war crimes through other means. Schoolgirls standing near the Sayed ul-Shuhada girls' school in west Kabul, the day after multiple bombs killed and injured more than 200 of their school fellows. The Afghanistan Independent Human Rights Commission has asked the United Nations to investigate this and other war crimes. Photo: Wakil Kohsar / AFP
It is now well over a year since the ICC authorised its chief prosecutor, Fatou Bensouda, to launch an investigation into the war crimes and crimes against humanity which have allegedly taken place during the Afghan conflict since May 2003 (when Afghanistan become an ICC member state). The likely foci of any investigation, based on years of preliminary work, are: the Taleban, the United States military and CIA, the Afghan National Security Forces, especially the NDS and the Islamic State for Khorasan Province (ISKP). That investigation has still not started because, as AAN reported, the Afghan government requested a deferral in March 2020, on the grounds that it was following up cases in the domestic courts and so the ICC was not needed.
Last month’s meeting at the ICC in The Hague, on 7 and 8 May 2021, was following up on that deferral. The Afghan government has submitted documents related to 180 cases, provided to the court as evidence that the Afghan justice system is robustly investigating and prosecuting war crimes; the meeting was part of an ongoing assessment by the ICC’s Office of the Prosecutor (OTP) of these documents. According to the OTP statement issued after the meeting, the goal of the meeting had been to discuss “a number of pending issues” with regard to this case material. Prosecutor Bensouda had been hoping to be able to decide the fate of her investigation, whether to commence or delay. As yet, she has issued no decision. For the investigation not to go ahead, the prosecutor would have to be satisfied with the actions of the Afghan justice system in dealing with war crimes through its domestic courts. As the host of the meeting, she met the very high-level, 15-member Afghan delegation from Kabul. It was led by Minister of Foreign Affairs Muhammad Hanif Atmar and including two ministers, the acting attorney general and representatives of the Afghan Supreme Court and the security organs.
What the Afghan government hoped to get out of the meeting is harder to pin down. Atmar told journalists the meeting was aimed at discussing “future collaboration” between the ICC and Afghanistan on how to ensure justice for the victims of the war (AAN obtained a full version of the briefing from the ministry of foreign affairs on 10 May). However, in the context of the government’s persistent attempts to block any direct investigation by the ICC (for background see AAN’s report here and here), one would have to ask what exactly Atmar meant here by ‘collaboration’. The government is bound by Rome Statue treaty obligations to cooperate with the court, but would really rather not have to do so. Hence, its dance, to be seen to cooperate, while remaining absolutely reluctant to do anything that might help an investigation commence. The government finds the prospect of such an investigation problematic in three ways.
Firstly, the ICC investigation would also cover the actions of the United States military and CIA. This is anathema to Afghanistan’s main backer. Former US president Donald Trump imposed economic and travel sanctions against the ICC prosecutor and one of her colleagues (for more on this, see AAN’s report here) to try to force a halt to the investigation, actions that provoked criticism at the international level. Biden’s administration revoked the sanctions in April 2021, hoping to resolve the matter in a softer manner, but this was not a signal that the US recognises or accepts ICC jurisdiction over US actions in Afghanistan or indeed anywhere else. Secondly, the investigation would also cover the ANSF, again something the government is keen to avoid. Thirdly, Kabul has argued that an investigation as an obstacle to making peace (earlier, with Gulbuddin Hekmatyar (2016) and now with the Taleban); criminal cases investigating war crimes can complicate the politics of making peace deals and might inflame public tensions and grievances.
The May meeting in The Hague ended without conclusion in the matter of the deferral. The Afghan delegation and the OTP released statements repeating their commitment to finding justice for the victims of war crimes through ‘joint collaboration and exchange’, but without announcing any decision on the deferral. However, the statements released by both Atmar and Bensouda point to a number of interesting dynamics unfolding.
Bensouda said she looked forward to continuing her “constructive exchange” with the Afghan government. She stressed the OTP’s commitment to figuring out “how justice may best be served through joint collaborative efforts,” while respecting the “independent duties and responsibilities under the Rome Statute” of her office and the Afghan government. These two points were echoed in the Afghan delegation statement. Atmar also made a number of other points.
First, he used the platform given him by being at The Hague to threaten the Taleban, relaying the message: ‘Stop the violence or be put on trial’. He also repeatedly stressed that the OTP and the Afghan delegation were in agreement and would continue their discussion on fighting the ‘culture of impunity’ together, not only by investigating past crimes, but also those being perpetrated now and in the future. He highlighted that perpetrators of international crimes would be prosecuted regardless of where they were, in Afghanistan, Doha, Quetta or any other corner of the world, “unless,” he said “they stop violence and make peace.”
Second, Atmar said the ICC prosecutor had been complementary about the investigations of potential war crimes by Afghan national institutions and insinuated that she would probably decide to defer the investigation.
Third, he said both sides had agreed to undertake ‘collaborative efforts’ to end the culture of impunity for perpetrators of war crimes and crimes against humanity. Towards what he called “this shared goal,” he said the Afghan delegation had proposed that the OTP acts as an observer of the Afghan investigatory bodies and “helps” them do their job better by building their capacity.
Fourth, he said they had agreed on the comprehensive exchange of “all information” related to cases under investigation and the capacity building of the domestic institutions.
Finally, recognising that the situation in Afghanistan is complex and that war crimes are potentially still being committed, he said they had proposed establishing a joint oversight mechanism to monitor ongoing crimes.
It was noticeable that unlike its previous engagements with the ICC, when the Afghan government was relatively circumspect, media outreach prior and subsequent to this meeting was extensive and proactive – perhaps indicating officials are trying to control the public narrative and use the media to amplify its warnings to the Taleban.
Atmar’s statement gave the appearance of cordiality, cooperation and solidity, of substantial steps being taken or proposed. However, when his and Bensouda’s statements are compared, the areas of vagueness, incoherence and contradiction are glaring. Some of Atmar’s statements appear to contravene existing legal arrangements, call for actions which are outside or banned by the ICC’s mandate or it is difficult to see how they could be implemented. We explore each in turn.
A) Complications in dealing with the deferral request
When Atmar briefed journalists after his meeting with Besouda, he spoke enthusiastically about the praise Afghanistan’s domestic investigations had received from the OTP. He insisted that such praise was “rare” for a member state to receive and was a “big honour” for the country. He also said that Bensouda had been satisfied with Afghanistan’s investigations, based on the documentary evidence the OTP had reviewed. However, there are various complications in Afghanistan’s request which make it difficult to imagine that, at least at this stage, Bensouda could have wholeheartedly praised the efforts of Afghanistan’s justice system.
In his briefing with journalists, Atmar referred to 180 cases, documents for which the Afghan government have submitted to the court in support of its deferral request. These are cases which it says it has investigated or plans to investigate. They cover a range of perpetrators, including the Taleban, ISKP and foreign soldiers, who allegedly committed at least one act of international crimes coming under the scope of the OTP pending investigation. Yet Atmar did not name the ANSF as an alleged perpetrator in any of the cases. This contradicts the list of 104 cases shared with the OTP as an annex to the Afghanistan deferral request, in which 26 cases were attributed to the ANSF and international forces. The other cases were against the Taleban (36), ISKP (seven) and unknown groups (53). It is also notable that the Afghan Attorney General Office’s most recent annual activities report, published in 2020 and covering 2019, which provided a list of investigated and prosecuted cases, mentioned nothing about any war crime or crimes against humanity being investigated or prosecuted in 2019.
The cases against US and/or NATO forces pose a particular problem for Afghanistan – and so also for the OTP if the prosecutor decides not to allow the deferral. Though both Atmar and the March 2020 annex to the deferral request mention crimes allegedly perpetrated by international forces, it is not clear how many and which crimes the government has investigated or indeed, if it has investigated any. Moreover, the Afghan government ceded sovereignty over the alleged perpetrators of crimes if they were members of or contractors with international forces; this was signed off in agreements that the Afghan government signed with the US and NATO in 2014 and which are still in force (The agreements were renewals of earlier agreements). In them, the Afghan government agreed that the state to which a suspect belongs “shall have the exclusive right to exercise jurisdiction over such persons in respect of any criminal or civil offenses committed in the territory of Afghanistan” (AAN’s reports on the agreements can be found here). The Afghan government can document crimes attributed to members of US and NATO forces, but it cannot use the documentation to prosecute the alleged perpetrators through Afghan institutions. Nor can it give documentation for the purposes of prosecution to a third party like the ICC.
Also complicating its assessment of the government’s deferral request is the likely logistical hurdles faced by the OTP as it wades through the case materials. Since June 2020, the OTP has received two packages of documents of at least 10,000 pages in total from the Afghan government. The OTP notified the judges of the ICC Pre-Trial Chamber in April 2021 that “the material was voluminous.” A source working for an international NGO in The Hague told AAN that month that the first package, submitted in June 2020, amounted to around 8,000 pages in Dari and Pashto. The second package, submitted in January 2021, contained 3,500 pages of information, mainly in Dari, according to the OTP in its April 2021 notification to the judges of the ICC Pre-Trial Chamber.
Translation and analysis of such a huge amount of material, taking into account the limited human resources of the OTP, will certainly have slowed matters down. Perhaps for this reason, nothing was heard from the OTP or other organs of the ICC about the investigation or the content of materials shared by the Afghan government from April 2020 to April 2021. That silence provoked criticism of the OTP and of the Registry of the ICC, whose mandate is to keep victims informed about proceedings. For example, a group of Afghan victims and civil society organisations filed a motion on 20 April 2021, arguing that the OTP and the Victims Participation and Reparation Section and the Public Information and Outreach Section of the Registry of the ICC “have failed to formulise or execute an affective outreach strategy” to make the Afghan war victims able to understand their rights ensured in the Rome Statute. The petitioners highlighted the failure of these ICC organs in informing “victims and affected communities of: the Afghan government’s article 18(2) request; the OTP’s suspension of investigative activities in the Situation; or the right of Afghan victims during the investigation stage” and therefore they are seeking remedies for victims.
After The Hague meeting, Bensouda did complement Afghanistan’s commitment and the steps it was taking to investigate alleged war crimes and crimes against humanity, but, at least in public, her words fell short of explicitly praising or endorsing Afghanistan’s domestic investigations. She said her decision on whether or not to accept Kabul’s deferral request was still “pending.” She did stress that the clarifications and information provided by the Afghan delegation would help her “independent assessment” of its request.
Of significance here is a response the OTP made to a motion jointly submitted by a group of Afghan civil society organisations on 17 May 2021, when Bensouda again clarified that, as yet, no decision had been made on the deferral request. However, she did stress that “the assessment is presently at a critical stage – not only is judicial [ie ICC] intervention at the current time unwarranted, but it may be counter-productive.” In this, Bensouda does appear to have lost the certainty she had during the appeals hearing in December 2019 when she argued forcefully that the judges should authorise her investigation (AAN’s reports on the appeals hearings here and here). Yet, as she has said, the decision is still to be made.
B) Overseeing the Afghan institutions
Atmar’s proposal that the ICC should oversee and support the Afghan judicial system as it prosecutes war crimes appears to be mere posturing since this is already within the legal mandate of the ICC and the Afghan government is already obliged to cooperate with the court. The Rome Statute requires the prosecutor to review the deferral “six months after the deferral date or any time when there has been a significant change of circumstances” (art 18(3)) and obliges the Afghan government to “periodically inform the Prosecutor of the progress of its investigations and subsequent prosecution” upon the request of the prosecutor, without undue delay (art 18(5)).
C) Capacity Building of Afghanistan’s investigatory
Atmar’s request for capacity building is particularly odd, as, legally speaking, neither the OTP, as an organ of the ICC, nor the ICC as a whole have a mandate to build the capacity of national institutions to investigate and prosecute crimes. In the past, the OTP has tried to convince the Assembly of State Parties of the ICC to give it such a mandate, but the assembly has always denied such requests and directed the court to stay focused on its core activities, investigation and prosecution. Atmar again looks to have been posturing.
D) A joint oversight mechanism
There is no precedent for monitoring war crimes through a joint oversight mechanism, as proposed by Atmar. The OTP would undoubtedly want to retain independence in any oversight. It is important to the OTP to stay independent and able to oversee the willingness and ability of the Afghan national institutions to undertake investigations and according to the Rome Statute, it should not let “any external source” give instructions to the OTP’s staff (art 42(1)). Therefore, it is not clear how a ‘joint oversight mechanism’ could work. Moreover, the ICC already has some level of oversight.
E) Joint investigations
Finally and perhaps most confusing from a legal perspective, was the Afghan delegation’s invitation to the prosecutor to jointly investigate some cases, starting from two recent incidents – a proposal which, according to Atmar, is under discussion. From a legal perspective this is odd, as on one hand, Afghanistan is trying to convince the ICC prosecutor not to directly intervene and on the other hand, is inviting it to launch a joint investigation. Under the principle of independent investigation, found in the Rome Statute, the OTP is not permitted to investigate a case jointly with any other entity. It can request information from a state about a case but the assessment of the information should be independent and confidential, not least because the state’s actors themselves may be involved in perpetrating the crimes under investigation (as is the case with accusations against the ANSF – see the OTP’s 2017 request here).
In addition, the Rome Statute, under the ‘complementarity principle’, whereby the court should only act where domestic courts are unwilling or unable to do so, does not allow the joint investigation of cases. The ICC and national institutions may independently investigate separate cases parallel to one another, but they are not permit to jointly or independently investigate cases which are under investigation by the other. The OTP could have an investigative jurisdiction over cases if there is a reasonable basis to believe those cases are not being genuinely investigated by national authorities (hence the documentary evidence submitted by Afghan authorities to prove they are investigating alleged crimes). If it wanted the OTP to investigate specific cases, the Afghan delegation should refer those cases to the OTP, in accordance with article 14(1) of the Rome Statute. In this case, the OTP would investigate the cases and the Afghan government would be required to cooperate – but this would not be a ‘joint investigation’.
Atmar’s real goals in his meeting at The Hague?
From a legal perspective, Atmar’s proposals on how the Afghan government could work with the ICC were inconsistent and at times, incoherent. Yet a desire to take practical steps may not have been his real aim in making them. The Afghan government desperately wants the OTP to agree to defer an investigation, mainly to avoid the ire of the US, but also to side-step criticism of the ANSF and keep at bay upsets to whatever peace process with the Taleban might emerge. At the same time, Kabul is keen to be seen as working hand-in-hand with the ICC to fulfil its treaty promises to cooperate with the court. The suspicion must remain that Kabul is playing for time, that the huge volume of documents it has submitted to the OTP was designed to confuse, bewilder and delay, to be seen to be cooperating, while actually trying to sabotage any investigation. Voicing proposals that appear to be cooperative, but which can never be implemented may also be part of creating the same smokescreen, of apparent, but hollow cooperation.
Atmar also clearly used his meeting at The Hague to send a political message to the Taleban. In his 9 May briefings, Atmar repeatedly stressed that the OTP and the Afghan delegation were in agreement and would continue their discussion on fighting the culture of impunity for international crimes together. According to Atmar, those who commit crimes under the name of peace should understand that they will not escape justice – either the Afghan judiciary will prosecute them in Afghanistan or an international body like the ICC out of Afghanistan. There were no safe havens, he said.
While Atmar’s message is valid and consistent with the ultimate goal of the Rome Statute, suggesting that the role of the ICC was limited to investigating only the Taleban, whether they were living inside or outside Afghanistan, could be an error in fact. The alleged perpetrators in the Afghan conflict are not only the Taleban, but also to be found in the ANSF and the US army and CIA. Moreover, in terms of prosecutions, the ICC typically builds cases against a small number of senior members of a warring party, those who played the largest and most direct share in planning and/or executing the alleged crimes. Its focus is much less on foot soldiers. Atmar’s use of the court to threaten Taleban en masse is therefore ill-placed.
If the ICC is thus far, hamstrung, to whom can victims turn? The AIHRC calls on the UN to act
On the very day as the Afghan delegation was in The Hague trying to convince the ICC prosecutor to defer her investigation, schoolgirls in west Kabul came under bloody attack. Two blasts targeting the Sayed ul-Shuhada School in Dasht-e Barchi at a time when girls were attending killed at least 85 girls and injured at least 147 others. The school is in a Shia-Hazara dominant area of Kabul and it was clear that this was the latest sectarian attack to target Afghanistan’s Shia Muslims/ethnic Hazaras.
A day after the attack, on 9 May, the Afghanistan Independent Human Rights Commission (AIHRC) issued a strongly-worded statement requesting the UN to assign a truth-finding mission to “address the murder of these children and the alarming rates of civilian casualties.” It highlighted the Sayed ul-Shuhada attack and listed others targeting the Hazara community. It also called attention to an attack on a guesthouse in Logar’s provincial centre, Pul-e Alam, on 1 May, which, according to the BBC, killed 30 and injured 90 other civilians. Among the dead and injured were school students who had come to the provincial capital to take the university entrance exam. According to the AIHRC, during the month of Ramadan alone (13 April to 13 May 2021), its investigation team had documented “130 incidents, which resulted in 519 civilian casualties,” including 160 deaths and 351 people wounded. There have also been dozens of unclaimed targeted killings in recent months. AIHRC said many questions remained unanswered about these incidents “due to the absence of investigation.”
The AIHRC called on UN Secretary General António Guterres to assign “an expert and fully resourced, independent team” to “carry out a fact-finding mission into the massacre and unclaimed targeted attacks on civilians.” It said the investigative team should collect evidence to identify the perpetrators, their supporters, affiliations, sources of funding and save havens. AIHRC also demanded that the UN Secretary General call for “an international, inter-governmentally mandated Commission of Inquiry into civilian casualties” to probe “civilian casualties which have occurred as a result of a variety of types of violence and in a verity of places – including mosques, gurdwaras, hospitals, schools, universities and tutoring centres.” The UN Security Council (UNSC) was asked to issue a resolution to ensure that the perpetrators of such crimes must be made accountable. The AIHRC’s requests to the UN included deadlines which have since passed.
The AIHRC has corresponded directly with the relevant UN authorities in New York about the demands, but has yet to receive a response. AIHRC chairwoman Shaharzad Akbar told AAN on 1 June 2021 that her letter had reached the UN authorities and “we have been told that the letter will soon be responded to.”
The fact that the AIHRC made these requests is significant. It is the first time it has called on the UN to assign such investigations, a commission of inquiry and a team of experts, to respond to the mass violation of international human rights law and serious breaches of international humanitarian law in Afghanistan. The commission’s requests were echoed by the European Parliament Resolution on Afghanistan made on 9 June.
There are three types of UN investigative mechanisms. The first is to set up or authorise a body of inquiry, which documents incidents and publishes findings – but these findings may not be used in a criminal prosecution. The second type of mechanism collects evidence and prepares files which could be used in criminal proceedings before national and/or international courts. The third type, known as ‘special procedures’ monitor, advise and report on human rights. In the past, the UN has authorised missions belonging to this third category, when fact-finding missions on human rights violations were conducted in Afghanistan by special rapporteurs appointed for the purpose or sending an Exploratory Mission. For instance, in 1998 the UN High Commissioner for Human Rights sent an Exploratory Mission to Afghanistan to investigate reported mass killings, rape and other violations. In 1995, the UN Commission on Human Rights appointed Choong-Hyun Paik as its Special Rapporteur to report on human rights situation in Afghanistan and in 1986, Special Rapporteur, Felix Ermacora, submitted his report to the UN General Assembly about the status of protection of human rights during the Afghan communist regime. The AIHRC has requested investigative bodies from the first or second categories as they are stronger than those in the third category.
Although the AIHRC, unlike the Afghan government, has advocated for the ICC’s direct intervention in the Afghanistan situation, it is understandable why it is also requesting a UN fact-finding mission. Considering the current relationship between the ICC and the Afghan government, it is not clear whether the ICC will commence its investigation or not. If it does, it is not clear when. Given the challenges it is facing from the Afghan government and the US it might take a long time. It took the ICC 11 years, from 2006 to 2017 to finish its ‘preliminary investigation’ and decide to ask the judges of the Pre-Trial Chamber to authorise an investigation. The ICC’s preliminary investigation was the second longest in its history (after Colombia).
The whole process might bring justice for some victims, but it would take years and be uncertain and, until the final stages, secret. In contrast, a UN fact-finding mission would be quicker, shorter and their reports would be published publicly.
If the UN does send a fact-finding commission or a commission of inquiry, it would not block the ICC investigation as the nature of the investigation would be different. Depending on what the UN investigative findings were, the aim of its investigation would not be to try the alleged perpetrator by a UN body, but rather provide answers to the public, while the aim of an ICC investigation would be to prosecute and try alleged perpetrators. In addition, a UN investigation could support the ICC investigation if it resulted in evidence of crimes admissible under the scope of the ICC investigation.
AIHRC’s demands for investigative support from the UN demonstrate its lack of faith in the ability or willingness of Afghan government institutions to provide answers or justice to the victims of war crimes. This is in sharp contrast to Atmar’s assurances to Bensouda and the Afghan public that the Afghan court system is already investigating and prosecuting war crimes. The AIHRC’s plea to the UN and its critique of the absence of national investigations of war-related crimes should push the ICC prosecutor to fully scrutinise and question the reassurances and claims of the Afghan delegation.
Kabul is trying to send a message that there will be no impunity for war crimes in Afghanistan, while continuing efforts to put the ICC off investigating them. At the same time, the government is doing little itself to secure the integrity of national investigations. This is especially the case with crimes allegedly conducted by the ANSF and US forces. Yet the horror of civilian casualties and the desperate pleas of the AIHRC for help from the UN demonstrate the burden that the actual ongoing impunity for war crimes imposes on Afghan society and individuals.
After spending a year ploughing through the material sent by the Afghan government, the prosecutor must now fully appreciate how daunting an investigation would be. Prosecuting crimes, while reliant on large volumes of documents in Pashto and Dari and with minimal access to resources within Afghanistan, would be a tall order. Bensouda also knows she would be reliant on the cooperation of a government that does not really want to cooperate.
The ICC chief prosecutor appears still to be in two minds as to whether to accept Kabul’s request for a deferral. In her words, the OTP’s assessment is at “a critical stage.” She seems to have lost the certainty she had in December 2019 when she argued convincingly at the appeals hearing that her investigation must go ahead. It may be that after completing her assessment of the materials submitted as part of Kabul’s deferral request, she will decide to stop the ICC investigation. If that is the case, the Afghan government will have succeeded in its long-running efforts to prevent a direct investigation by the ICC, something that would also delight the US.
The ICC route to justice would be long and uncertain. Yet, losing it now would be a bitter blow for the victims of war crimes in Afghanistan, who still look to the ICC as a last resort for getting accountability and justice.
Edited by Hannah Duncan and Kate Clark
This article was last updated on 20 Jun 2021