The International Criminal Court (ICC) has published its findings from victims who suffered war crimes in relation to the Afghan conflict, either in Afghanistan or in other countries. The victims mentioned murder, rape, forced disappearance, attacks against civilians and pillage. The ICC report said victims’ backing for an ICC investigation was “overwhelming” with 98 per cent of victims who made submissions to the Court saying they wanted to see this happen. As AAN Co-Director Kate Clark reports, the ball is now in the hands of the Court’s Pre-Trial Chamber’s judges who have to decide to investigate, or not.
AAN initially reported on the victims’ representations after the deadline for making them, 31 January 2018, had passed. This dispatch is an update with the final data from the ICC and its conclusions.
A redacted version of the ICC’s final report on victims’ responses can be read here.
The judges of the Court’s Pre-Trial Chamber had already heard from ICC Prosecutor Fatou Bensouda that she thought an investigation into war crimes and crimes against humanity in Afghanistan was merited (see AAN reporting here). They then had to hear from victims, to see whether an investigation would be in the ‘interests of justice’ (understood by the Court as in the ‘interests of victims’). 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 was clear. Almost all who contacted the Court said an investigation was necessary. Out of a total of 695 submissions (1) – 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.
Why did victims want war crimes investigated?
The ICC said those who did not want an investigation cited, “Security concerns and doubts as to the likelihood that the Prosecutor’s investigation would result in the perpetrators being brought to justice were the reasons cited for this refusal.” Those who think an investigation necessary said it was because they wanted an “investigation by an impartial and respected international court; bringing the perceived perpetrators of crimes to justice; ending impunity; preventing future crimes; knowing the truth about what happened to victims of enforced disappearance; allowing for victims’ voices to be heard; and protecting the freedom of speech and freedom of the press in Afghanistan.”
For anyone living or working in Afghanistan over the last two decades, such sentiments are very familiar, even though it has become increasingly difficult and dangerous to speak about war crimes, compared to the early years following the fall of the Taleban. As early as 2004, the Afghan Independent Human Rights Commission (AIHRC) published the results of its consultation with Afghans about how they wanted to deal with the legacies of war crimes, at that time from the beginning of the conflict in 1978 to 2001. This report showed 70 per cent of those consulted considered they had been victims of war crimes and 84 per cent considered justice to be very important or important. Opinions diverged on what was considered to be justice (read the report here). Almost a decade later, in 2012, the Afghanistan Research and Evaluation Unit (AREU) published the results of its research on community perceptions of dealing with legacies of conflict in Afghanistan (read the report here). This report showed that securing peace was the primary concern, but also that peace and justice were not seen as competing, but complementary concepts. The report should there was no genuine will to forgive perpetrators and that people could not just forget the past. A year later, AAN published its report “Tell Us How This Will End” (read the report here). Covering the entirety of the conflict in Afghanistan, the report showed that the strategy of promoting stability without justice – deployed at every turn of the Afghan conflict – had simply not been successful.
Given that victims are rarely heard in Afghanistan, it is worth quoting what some of them told the Court. “Attempts in the country to ensure justice have not been successful,” said one victim submission, “so it is better to give ensuring justice by the international mechanism.” Another said, “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.” A third said, “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.” Such concerns by victims about what the ICC called the “effectiveness of the Afghan judicial system” strengthens the view that an investigation would fulfil one of the Court’s conditions, that it will only intervene if no other court can or will do.
Some victims asked the Court to keep their safety in mind. “My concern is not to be victimized again. And my identity must be kept secret. At the moment also, I am under threat.” Some believed that many more people would have submitted their views if they had felt it was safe to do so. One submission, for example, said, “Some other [redacted] we contacted expressed concern about filing a victim representation form for fear of retaliation.” Others said the practical difficulty of filing reports had no all victims had come forward:
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.
What do we know of those who made submissions?
The people who responded to the Court said they had suffered the following crimes, a “non-exhaustive” list, the ICC said:
[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.
As to who they might have named as the alleged perpetrators, this report does not say. However, the Prosecutor’s preliminary examination from November 2016 said she thought there were cases to be made against the Taleban (including for murder and intentionally attacking civilians) (2), Afghan government forces (for torture) (3) and the United States military and CIA (for torture) (4).
We can see from the new report that Afghan victims in the country and the diaspora, (5) and non-Afghans responded. (6) They included victims of crimes that took place on Afghan soil (after May 2003 when Afghanistan became a state party to the Rome Treaty which established the ICC), as well as crimes that had a “prima facie nexus to the armed conflict in Afghanistan, are sufficiently linked to the Afghanistan situation and were committed on the territory of other States Parties since 1 July 2002.” That date is when Poland and Romania became a state party. Together with Lithuania (which joined in 2004), they have been mentioned by the Prosecutor because they had housed CIA black sites to which US security detainees were rendered and tortured.
Getting a breakdown on victims’ gender, nationality or ethnic group, date of birth, language(s) spoken, place of origin and current location of residence was hindered, said the ICC, because of the collective nature of most of the submissions (534 representations were assessed as collective, 165 as individual). (7) As far as the individual representations were concerned (which the ICC could get data from) the most significant characteristic was that only six per cent of victim submissions were made by or on behalf of women. As AAN reported earlier in the month, at least one NGO had warned this would be the case, saying the tight deadline and winter timing had exacerbated its problem of reaching women victims, many of whom lived in isolated places and could not leave their homes.
Who did not talk to the ICC
The ICC has recognised that, compared with the “vast number of victims in the country,” those contacting it were relatively few. The Court noted that its outreach had been poor and that, with no presence in the country, it had not managed to have a “clear voice” in Afghan media. That so many victims did manage to respond appears to be down to the work of advocacy organisations, “those with experience” in Afghanistan, whom the ICC “contacted and relied on… to reach out to victims with limited access to technology and to the public debate.” It also said it contacted lawyers and members of the Afghan diaspora in Europe for help.
Other factors reducing the numbers of Afghans contacting it, it said, were the “[l]ow levels of trust in judicial institutions” which hampered their “public willingness to engage.” It also cited low literacy rates, particular among women, and the multiple infrastructural challenges to reporting, including poor internet, geographical distances and difficulties in accessing remote areas, especially during winter. As AAN also reported, even though Afghanistan was given an extended time for victims to register their views, two months remained an exceptionally short time given the logistical challenges, insecurity and the ICC’s poor outreach strategy.
The exact number of victims represented in the submissions cannot be known, said the ICC because of the limited information in the submissions and because, given the security situation and the limited time frame, it cannot judge whether all members included in collective representations were properly informed. Nevertheless, it gave this breakdown:
- Representations were made on behalf of approximately 6,220 individual victims.
- Amongst these representations were 17 forms also submitted on behalf of 1,690 families.
- A further 12 representations were introduced by individuals and by organisations on behalf of approximately 1,163,950 victims and 26 villages.
- Finally, another representation was submitted by an organisation reportedly on behalf of approximately 7 to 9 million people.
In the context of the fact that relatively few victims had come forward, the ICC said:
All [redacted] that the [ICC] Registry engaged with emphasized their longing for justice, which also characterizes many sectors of society, and their belief that peace in Afghanistan can only be achieved through justice. They reported that this belief was their driving force, [redacted].
What happens next?
If the judges of the Pre-Trial Chamber do now decide to authorise an investigation, the real hard work will begin. The Prosecutor would have to decide which specific individuals to make cases against and start gathering evidence and witness statements in a country where access – both because of language and security – will be exceptionally difficult. The Court may also have to contend with US pressure, whether direct or indirect. Washington has said it opposes the Court’s involvement in Afghanistan and that any investigation against its personnel would be “wholly unwarranted and unjustified.” The Court would need to carry out its investigation while war crimes and crimes against humanity are ongoing (for a flavour, see this recent UNAMA report on the Protection of Civilians and AAN analysis here), where perpetrators enjoy impunity and victims frequently lack state protection and where the war is far from over.
Edited by Sari Kouvo
(1) The Court received 794 submissions, of which 41 were assessed to be duplicates and 699 were deemed to fulfil the Court’s criteria of ‘victim’. (It did not give the reasons for the remaining 54 not meeting this criteria.)
(2) The Office of the Prosecutor’s November 2016 Preliminary Examination Report (cited by AAN here) said there was a reasonable basis to believe that the Taleban and Haqqani network had committed war crimes (murder; 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…”).
In terms of admissibility, the Taleban and Haqqani network’s crimes passed the gravity threshold. As to whether domestic courts were dealing with suspected war criminals, the Office of the Prosecutor pointed to the almost complete lack of any investigation or trial of alleged war criminals in Afghanistan and to the 2009 Amnesty Law which provides amnesty to everyone who has committed war crimes, including those who, in the future, reconcile with the Afghan government (see also this AAN report). It was noticeable, in this respect, that the government 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. Amnesty for war crimes in domestic legislation can be interpreted as unwillingness by the state to prosecute.
(3) The Office of the Prosecutor (cited in AAN reporting here) has estimated that 35 to 50 per cent of conflict-related detainees “may be subjected to torture” by government forces and said there is a “state of total impunity.” There is a reasonable basis to believe, it said, that Afghan authorities have committed the war crimes of torture and cruel treatment, outrages upon personal dignity pursuant to article, and sexual violence. Naming the Afghan intelligence agency, the National Directorate of Security (NDS), the Afghan National Police, Afghan National Army, Afghan Border Police and the Afghan Local Police (ALP), it says available information suggests the alleged crimes were committed on a “large scale.” Although there is no indication that they were committed “as part of any plans or policies at the national level,” in some cases, it said, there were plans or policies at the level of facility, district or province.
(4) The Prosecutor’s 2016 Preliminary Examination Report (see AAN analysis) said the CIA and US military, during interrogations of security detainees and in conduct supporting those interrogations, had:
… 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 Office of the Prosecutor said these “alleged crimes were not the abuses of a few isolated individuals,” but rather were part of a policy:
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.
(5) The report said, “conference calls were organised with members of the Afghan diaspora [redacted],” as part of the Court’s outreach.
(6) One submission was made in Arabic, likely an Arab victim of US forces. The following sentence also implies foreign detainees of the US military or CIA because Afghan forces have rarely held detainees in indefinite detention: “Video conferences were also held with civil society representatives and lawyers, [redacted], working closely with victims of indefinite detention without trial and victims of torture.”
(7) Some insight was also given by the language of the submissions: 175 in English, 323 in Dari or Pashto, one in Arabic, two in German, 193 in Dari together with English translations, and five in Dari or Pashto together with German translations.
This article was last updated on 9 Mar 2020