The International Criminal Court (ICC) has decided not to investigate war crimes and crimes against humanity that have allegedly taken place on Afghan soil. The Court’s Chief Prosecutor, after finding that there was evidence of the Taleban committing a range of crimes, including murder and intentionally attacking civilians, and of Afghan government forces and the United States military and CIA carrying out torture, had requested permission to investigate in November 2017. A few months later, more than 6,000 individuals, along with, collectively 1,690 families and 26 villages voiced their support for an investigation. However, the judges of the ICC’s Pre-Trial Chamber II have today decided that, “at this stage,” an investigation “would not serve the interests of justice.” Their decision, reports AAN’s Kate Clark, comes after the US threatened the court and its personnel with sanctions if they went ahead with an investigation. An injured man uses a piece of timber as a crutch to try to get away from the scene of one of the worst attacks since 2001. The Taleban said they were targeting the Ministry of Interior buildings in Kabul. Using a van painted to look like an ambulance, the suicide attack killed 114 civilians, and injured 229 more. Such intentional killing of civilians by Taleban is one of the crimes the ICC Prosecutor had wanted to investigate. (Photo: Andrew Quilty, 2018).
If the Pre-Trial Chamber II had authorised an investigation, the ICC would now be preparing to put together a team of investigators to begin the task of collecting victim and witness statements and other evidence, with the aim of building cases against specific individuals leading to their prosecution. This would have been necessary as the ICC can only prosecute individuals, not governments, groups or institutions. Instead, the judges of the ICC’s Pre-Trial Chamber II have unanimously decided to reject ICC Chief Prosecutor Fatou Bensouda’s request to investigate. A press release from the ICC, says the judges believed an investigation “into the situation in Afghanistan at this stage would not serve the interests of justice.”
The judges said they had considered Bensouda had established on a reasonable basis that crimes within the Court’s jurisdiction had been committed in Afghanistan. They had also considered that potential cases would be admissible before the Court. However, they noted:
…the lack of cooperation that the Prosecutor has received and which is likely to go scarcer should an investigation be authorized hampering the chances of successful investigation and prosecution, as well as the need for the Court to use its resources prioritizing activities that would have better chances to succeed.
The judges believed that “notwithstanding the fact [that] all the relevant requirements are met as regards both jurisdiction and admissibility,” Afghanistan’s current circumstances are such as to “make the prospects for a successful investigation and prosecution extremely limited.” They felt that pursuing an investigation would not meet “the objectives listed by the victims favouring the investigation” and therefore concluded that an investigation “at this stage would not serve the interests of justice…”
In other words, the problem is not that war crimes have not happened, or that the crimes were not grave enough to merit the Court’s attention or were inadmissible or that there was a lack of evidence. The problem lay in the prospect of carrying out an investigation in a country where lack of cooperation would make a successful prosecution unlikely. Given, as will be seen below, that more than 6,000 individuals responded, along with, collectively 1,690 families and 26 villages – and victims’ views are usually fundamental to what the Court understands by the phrase ‘the interests of justice’ – the judges’ conclusion must surely be considered controversial.
Initial reactions to the Pre-Trial Chamber II decision have focussed on those who have suffered war crimes. Chairwoman of the Afghanistan Independent Human Rights Commission (AIHRC), Sima Samar, told AAN that victims would be terribly disappointed and that she was “really concerned about the continuation of the culture of impunity in the country.” Human Rights Watch’s Param-Preet Singh called the judges’ decision “…a devastating blow for victims who have suffered grave crimes without redress.” She said:
The judges’ logic effectively allows states to opt out on their obligation to cooperate with the court’s investigation. This sends a dangerous message to perpetrators that can put themselves beyond the reach of the law just by being uncooperative.
As hinted at by Singh, the concern must be that it was the threats and bullying by the United States, as well as the Afghan government’s lack of cooperation with the Court, that were behind the Pre-Trial Chamber II decision not to authorise an investigation.
In this dispatch, before looking at the implication of the judges’ decision in more detail, the author will detail events starting from 2003 when Afghanistan ratified the Rome Statute, giving the ICC jurisdiction over war crimes on its soil, to the Court’s recent decision not to prosecute. It looks at the crimes the Prosecutor hoped to investigate, victims’ views, the uneasy way Kabul has dealt with the Court – legally bound to cooperate, but absolutely reluctant to do so – and the bullying of the US. It has been a long road that has eventually led to the Pre-Court Chamber deciding not to investigate war crimes in Afghanistan.
1 May 2003: Islamic Republic of Afghanistan ratifies the Rome Statue, giving jurisdiction to the ICC to investigate and prosecute war crimes and crimes against humanity committed on its soil or by its citizens after this date.
2006: the ICC’s Office of the Prosecutor (OTP) began preliminary investigation into alleged war crimes in Afghanistan.
20 November 2017: Bensouda requested authorisation to carry out an investigation with the aim of building cases against individuals accused of war crimes or crimes against humanity. Details about the crimes Bensouda said she had credible evidence of, that were grave enough and of a scale to merit the Court’s attention and that domestic courts were either unwilling or unable to take action against, had come in the Office of the Prosecutor’s (OTP) November 2016 annual report (see AAN reporting here). It had said there was a reasonable basis to believe that, “at a minimum,” the following crimes within the Court’s jurisdiction had taken place:
- Crimes against humanity and war crimes by the Taliban and their affiliated Haqqani Network;
“[M]urder; intentionally directing attacks against the civilian population, humanitarian personnel and protected objects; conscripting children; and killing or wounding treacherously a combatant adversary – all of which, it said, “were committed on a large scale and as part of a plan or policy”) and crimes against humanity (murder; imprisonment or other severe deprivation of physical liberty and persecution against any identifiable group or collectivity on political grounds and on gender grounds, all “allegedly committed as part of a widespread and/or systematic attack…” – for full quote, see paragraphs 206 and 207 of the report.)
In terms of admissibility, the Office of the Prosecutor said that the Taleban and Haqqani network’s crimes passed the gravity threshold. As to whether domestic courts are dealing with suspected war criminals, the OTP pointed to the almost complete lack of any investigation or trial of alleged war criminals in Afghanistan (1) and to the 2008 Amnesty Law (the OTP report mistakenly refers to the 2009 Amnesty Law; the Amnesty Law in Afghanistan had been passed in 2008) which provides amnesty to everyone who committed war crimes, including those who, in the future, reconcile with the Afghan government (see also this AAN report). Significantly, the government also granted immunity to Gulbuddin Hekmatyar and his armed men in the context of the peace agreement signed with Hezb-e Islami on 29 September 2016. (2)
- War crimes of torture and related ill-treatment by Afghan government forces, in particular the intelligence agency (National Directorate for Security) and the Afghan National Police;
In 2016, the OTP stated that multiple sources, including the Afghanistan Independent Human Rights Commission (AIHRC), UNAMA, and a presidential fact-finding commission in 2013, had reported on the prevalence of torture in Afghan government detention facilities. The OTP estimated 35 to 50 per cent of conflict-related detainees “may be subjected to torture” and says there is a “state of total impunity.”
The OTP said there was a reasonable basis to believe that Afghan authorities had committed the war crimes of: torture and cruel treatment; outrages upon personal dignity; and (this is new in the OTP’s reports) sexual violence. Naming the National Directorate of Security (NDS), the Afghan National Police, Afghan National Army, Afghan Border Police and the Afghan Local Police (ALP), it said available information suggests the alleged crimes were committed on a “large scale.”
- War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.
The information available, said the OTP, provided a reasonable basis to believe that during interrogations of security detainees, and in conduct supporting those interrogations, members of the US armed forces and the CIA:
… resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape… Specifically:
Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.
Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.
Crucially, the OTP says these “alleged crimes were not the abuses of a few isolated individuals,” but rather were part of a policy. In its 2016 report, the OTP said:
The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan.
It notes the use of these methods ended when the authorities decided to stop using them, indicating the alleged crimes were ordered, rather than being the work of random individuals acting on their own initiative.
In the OTP’s 2016 report, Chief Prosecutor Bensouda said there were “no substantial reasons to believe that the opening of an investigation would not be in the interests of justice.” She called on the judges of the Pre-Trial Chamber III to authorise an investigation.
20 February 2018: the Court reported on the views and experiences of the more than 6,000 individuals responded, along with, collectively 1,690 families and 26 villages to the Court’s call for their input. In “overwhelming” numbers, they said they wanted an investigation (read the ICC report here and AAN reporting here). The victims reported having suffered the following crimes:
[M]urder; attempted murder; imprisonment or other severe deprivation of liberty; torture; rape; sexual violence; persecution; enforced disappearance of persons; other inhumane acts; attack against civilian population; attack against protected objects; destruction of property; pillage; forced displacement; outrages upon personal dignity; and denying a fair trial.
This consultation was crucial, as the Court has to find out whether an investigation would be in the ‘interests of justice’ – which is usually understood by the Court as in the ‘interests of victims’. (1)
Since February 2018, everyone has been waiting for the Pre-Trial Chamber II decision to authorise an investigation or not. The decision was expected in spring 2018 but was delayed after a new panel of judges took over in April. The new panel had to consider the case from scratch.
Objections from the Afghan Government and United States
After the Prosecutor’s 2017 request for an investigation, the Afghan government stressed that it would cooperate with the Court, but at the same time, underlined that its primary concern – while also seeking justice – is national stability. In practice, the Afghan government has been slow and reluctant to cooperate; it only really started communicating with the ICC in the final stages of the Preliminary Examination, and then mainly to ask the Court to delay its decision on whether to investigate or not (see here and here). Kabul has also taken several legal measures intended to show that it was willing and able to itself take action against the perpetrators of war crimes, especially torture. (2) However, these moves were belied by UNAMA’s most recent report, published in April 2017 (read AAN analysis here), which found that the use of torture against security detainees had increased since its previous report in 2015 (39 per cent of security detainees interviewed had been tortured, compared to 31 per cent in 2015) and that victims faced a “pervasive culture of impunity” with little likelihood of torturers facing even disciplinary action, let alone prosecution.
The Afghan government’s attempts to show the ICC it was willing and able to prosecute alleged war criminals in domestic courts were further undermined by the lack of prosecutions and by the Amnesty Law still being on the statute books. This law gives an amnesty to anyone who perpetrated war crimes before 2001 and any perpetrator since who reconciles with the government.
In recent months, there have also come a series of threats against the Court and its personnel by the United States.
10 September 2018: US National Security Advisor John Bolton made a withering attack on the Court (read his speech here and AAN reporting here), threatening prosecutions against personnel and retaliation against any country cooperating with the Court if it ‘went after’ America. Bolton called the court a “supranational tribunal” that trampled national sovereignty, a “free-wheeling global organization claiming jurisdiction over individuals without their consent.” The aim, he said, of its “most vigorous supporters,” was to “constrain the United States.”
4 April 2019: the US revoked the US visa of Chief Prosecutor Bensouda
12 April 2019: the Pre-Trial Chamber II rejected an investigation into the situation in Afghanistan
What will the ICC’s decision not to prosecute mean?
In some ways, the difficulties of carrying out an investigation in Afghanistan cannot be underestimated and must be taken into account when considering the judges’ decision. Afghanistan is embroiled in a brutal conflict involving all three parties that the ICC Prosecutor had hoped to investigate. The protection of ICC personnel, any Afghan staff, as well as victims and witnesses, would be immensely difficult to secure, particularly in areas of conflict or in territory controlled by the Taleban.
Without the active cooperation of the Kabul government, the ICC’s investigation would have been even trickier to carry out. For the Afghan government, caught between its legal obligation to cooperate with the Court and its utter dependence on goodwill from an American government implacably opposed to the Court, the prospect of an ICC investigation was horrible. It is therefore difficult to envisage that Kabul would have given the prosecutors the active support they would have needed.
Despite these practical difficulties, the likelihood remains that the judges gave in to US bullying. AIHRC Chairwoman Sima Samar thought this might have been the case, as does Human Rights Watch. The prestige of the Court, already suffering from accusations that it only prosecutes suspects from poor countries, especially African ones, and bows to big state pressure, has been further diminished.
Meanwhile, the Afghan government must be breathing a collective sigh of relief, and the Trump administration may well be feeling triumphant that its threats have worked and that US personnel will not be subject to the Court’s scrutiny and judgement.
As for the victims, their views have yet to be heard, but some quoted in the ICC’s report on their views and experiences, published in February 2017, point to their likely feelings:
Attempts in the country to ensure justice have not been successful, so it is better to give ensuring justice by the international mechanism.
We have not seen the central government of Afghanistan create a fair and independent court or prosecuting warlords or Mujahedeen for the international crimes they have committed against innocent victims.
The current government of Afghanistan cannot overpower the warlords in Afghanistan and there are a lot of crimes happening, but no one can raise their voices because of fear.
Most people in Afghanistan and our bereaved families are not highly educated and do not have access to the internet and facilities and just because they have not been able to file or register this form, please do not disregard their feelings and do not forget them and listen to them so that the continuation of bloody and painful incidents like this is prevented.
The section of the ICC which heard from the victims, the Victims Participation and Reparations Section Registry said it would be informing those who had made representations of the judges’ decision in the coming days
Dr Samar, Chairwoman of the AIHRC, told AAN that she hoped “the security of the victims will not deteriorate.” Amid the deep disappointment that victims have, yet again, been sidelined, she took one crumb of comfort from the ICC press release. The Pre-Trial Chamber II has said there are cases to answer, but an investigation would be too difficult “at this stage.” Samar told AAN that, “at least, they have not said [their decision] will be forever.”
Chief Prosecutor Bensouda has also given her initial, very brief reaction, hinting that this story may not yet be over. She pointed to the fact that the Pre-Trial Chamber II had based its decision “on its assessment of the interests of justice,” pointing to what seems to this author to be its controversial nature. Bensouda also said her office “will further analyse the decision and its implications, and consider all available legal remedies.”
Edited by Christian Bleuer
(1) A section of the ICC called the Registry, tasked with hearing from victims, gave people two months (December 2017 and January 2018) to respond. The message from those who responded was clear. Almost all who contacted the Court said an investigation was necessary. Out of a total of 695 submissions – which could be from individuals or collectives, such as a village or family or families – 680 said they wanted an investigation, while just 15 said they did not.
(2) Although torture was already illegal in multiple ways in Afghanistan, including under the constitution, the government adopted several new measures in March 2017, including a new Torture Law and adding the crimes listed in the Rome Statute, word for word, into its newly approved Penal Code. It makes the perpetrators of war crimes, crimes against humanity and genocide punishable by prison terms of up to 30 years, execution and/or compensating victims.
This article was last updated on 9 Mar 2020