The ICC Office of the Prosecutor (OTP) announced on 14 November 2016 that it would “imminently” make its final decision whether to ask the ICC Pre-Trial Chamber for authorisation to open an investigation into war crimes and crimes against humanity committed since Afghanistan signed the ICC statute in 2003. The Afghan government, however, has asked the ICC to hold off on plans for an investigation for one more year. AAN researcher Ehsan Qaane analyses the developments over the past seven months, the back-and-forth between the Afghan government and the ICC, and the likely key issue: whether war criminals enjoy amnesty in Afghanistan, or not.
As a member of the Transitional Justice Coordination Group, an informal network of civil society organisations and a former fellow at the ICC, Ehsan Qaane has followed the ICC preliminary analysis of the situation in Afghanistan closely. The author was also part of the civil society delegation that visited the ICC in The Hague in April 2017, a visit that is discussed towards the end of this dispatch.
14 years after signing the statute of the International Criminal Court (ICC) (hereafter, Rome Statute), the Afghan government has felt compelled to start communicating with the court. On the Afghan side, this communication involves the highest level. This in response to a report by the ICC prosecutor, which stated that there was “reasonable basis to believe” that war crimes and crimes against humanity had occurred in Afghanistan since the government signed the Rome statute on 1 May 2003 (see the sixth Preliminary Examination Report on the Afghanistan Situation disseminated by the Office of the Prosecutor (OTP) of the ICC on 14 November 2016).
The ICC also noted that no-one had been prosecuted for such crimes in this period in the country so far. Therefore, it said, the OTP would take its final decision “imminently” as to whether it would submit an application to the ICC Pre-Trial Chamber for authorisation to open an investigation (see also AAN analyses here and here). This would require a majority of three judges of the Pre-Trial Chamber to be convinced by the OTP’s findings and arguments.
Kabul’s main demand now is that the OTP delay submitting its application to the Pre-Trial Chamber to open an investigation. The reason: It feels that such an investigation could derail the September 2016 peace deal with Hezb-e Islami, the country’s second largest insurgent group. The deal has been welcomed by some Afghan allies, but not by war victims and human rights activists (see here and here).
The Afghan political delegation: “Don’t hamper the peace process”
In November 2016, a delegation of the Afghan government met ICC chairwoman Silvia Fernández de Gurmendi and ICC Prosecutor Fatou Bensouda in The Hague. The delegation was led by Hekmat Karzai, the deputy foreign minister for political affairs. According to the minutes of the meetings, reviewed in hardcopy by AAN, the government stated there that it “is keen to fully cooperate with the ICC, but it is not the right time to open an investigation into Afghanistan’s situation” (AAN translation from Dari). The delegation requested the ICC for more time (“at least one year”) so it could ensure a more comprehensive cooperation with the ICC. It argued that the ICC investigation could harm the ongoing peace process with Hezb-e Islami and its leader, Gulbuddin Hekmatyar, as well as the government’s next attempts to encourage the Taleban to join a similar ‘peace process’.
The Taleban (and their affiliated Haqqani network) are among the alleged perpetrators of war crimes and crimes against humanity, as mentioned in the OTP Preliminary Examination Reports. The Office has not attributed any alleged crime to Hezb-e Islami, although it listed it as one of the armed group who fought against the Afghan government. For its report, the OTP mainly used the October 2016 quarterly UNAMA civilian casualties report. In this report, covering the period between 1 January and 30 September 2016, 61 per cent of conflict-related civilian casualties was attributed to anti-government elements, without naming particular groups (AAN analysis here).
Since then, UNAMA’s annual report, published after the OTP report and the peace agreement with Hezb (in February 2017), attributed seven injured civilians to Hezb-e-Islami during 2016 (see p 50 here) from amongst a total of 6,994 civilian casualties attributed to anti-government elements. The last big terrorist attacks that led to civilian casualties and were claimed by Hezb occurred in Kabul in May 2013 and in February 2014.
The September 2016 peace agreement with Hezb-e Islami granted a blanket amnesty. This applied not only to the party leader, but to all Hezb commanders and fighters who joined the peace process. It did not set any caveat on the obligations under international law to ensure accountability for the most serious crimes, generally understood as the crimes included in the Rome statute.
As a result of the deal, Hekmatyar’s name was removed from the UN Sanctions List at Kabul’s request and the votes of the Security Council members. On 2 May 2017, 55 Hezb members were released from Afghan prisons. Meanwhile, negotiations for the release of around 2000 more detainees and prisoners are ongoing. On 5 May 2017, President Ashraf Ghani, Chief Executive Abdullah Abdullah, former head of state Hamed Karzai and prominent mujahedin leaders from the civil war era (1992-96) officially welcomed Hekmatyar in the presidential palace. In a speech there, Hekmatyar stressed the importance of “forgetting the past” and stated: “I never called anyone a war criminal and have also not asked for them to be brought to justice, as this is not the right time [to do so]. [In addition] there is no court in Afghanistan to prosecute warlords. The government is not strong enough to do so. Personally, I am not interested in the prosecution [of warlords].” (Watch here, 32:00 to 35:00)
Granting this blanket amnesty to alleged perpetrators of war crimes – and indirectly also offering it to the Taleban (as the Hezb deal has been viewed as a blueprint for such a second peace deal numerous times, e.g. see this EU statement) – will not help convince the ICC of the Afghan government’s willingness to prosecute war criminals.
According to article 17 and 53 of the Rome Statute, the OTP has to open an investigation when a state party shows unwillingness to prosecute alleged crimes under the jurisdiction of the ICC. According to the minutes of the Hague meeting, in response to the Afghan delegation’s request for a delay, ICC officials mentioned that “though the ICC is not putting its state parties under time restriction (…), the ICC is obliged to follow its procedures, too.” The officials also criticised the Afghan government for poor cooperation with the ICC in the past: “Since 2010, the ICC repeatedly asked information [from the Afghan government] but unfortunately [its] cooperation was not sufficient.”
The Afghan delegation to The Hague told ICC officials that the OTP had not considered important new legal developments that, according to the delegation, now showed Afghanistan’s willingness and ability to prosecute. Since November 2016, the following legislation had been passed:
- A new draft penal code was approved on 2 March 2017 by the cabinet. In contrast to its predecessor, this law now also criminalises war crimes, crimes against humanity, genocide and aggression. It includes definitions for these crimes that are identical with those in the ICC Statute. Articles 339 and 340 on responsibility of superiors now make commanders and senior officials responsible if their subordinates commit war crimes, crimes against humanity, genocide or aggression. This would be the first time in Afghan legal history that these international crimes have been criminalised in a national law – pending approval by parliament. (Another option is that President Ghani endorses the law as a presidential decree during the parliament’s summer recess.)
- The Law on Prohibition of Recruitment of Child Soldiers was published in the official gazette on 17 January 2015 and came into force one month later. Its Article 3 prohibits the recruitment of children and sets a punishment of six months to one year imprisonment for commanders who recruit children. The OTP’s Preliminary Examination Reports, including its latest report, published on 14 November 2016, included allegations of child recruitment by Afghan government forces: […] Afghan government forces have allegedly conscripted, enlisted and used children to participate actively in hostilities.
In their meeting, the Afghan delegation and the ICC officials agreed to continue communication and cooperation. The Afghan side gave assurances they would soon send a technical delegation to continue the discussion.
The technical delegation: “The ‘Amnesty Bill’ does not mean impunity”
The technical delegation visited the ICC on 12 January 2017. According to a source in the Ministry of Foreign Affairs (who spoke on condition of anonymity), Nadir Nadiry, the former transitional justice commissioner of the Afghanistan Independent Human Rights Commission, strategic communication officer in President Ghani’s office (at that time) and Afghanistan’s government focal point for the ICC, led the delegation.
The delegation was asked by the ICC to provide information on Afghanistan’s peace process with Hezb-Islami and the ‘Amnesty Bill’ for war crimes passed by the Afghan parliament that has been in force since 2009 (for background information, see here). The OTP, in its sixth Preliminary Examination Report had earlier noted that:
… the “Law on Public Amnesty and National Stability” provides legal immunity to all belligerent parties including “those individuals and groups who are still in opposition to the Islamic State of Afghanistan”, without any temporal limitation to the law’s application or any exception for international crimes.”
The delegation defended the Amnesty Bill and the peace agreement with Hezb-e Islami by explaining the Afghan, particularly sharia-based, legal terminology. This terminology refers to the categories of Haqullah (public right) and Haq ul-Abd (individual right). Under Haq ul-Abd, individual victims of war crimes and human rights violations continue to have the right to file a lawsuit and the judicial organs are required to process the case. This means that the judicial organs will only become active when victims take the initiative. However, without legal support of the state, this is in practice largely impossible, as many of the alleged criminals are either part of the government or in other positions of political power, including in the judicial organs.
Since the Amnesty Bill came into force, no victims have filed a case, either individually or collectively. Still, with Haq ul-Abd being part of the Amnesty Bill and the Hezb peace agreement, Kabul argued that the law and the deal did not amount to a blanket immunity.
The ICC officials were not convinced and asked the delegation for further explanations in writing.
Prosecutor to President Ghani: “The ICC will follow its procedures”
On 18 February 2017, President Ghani met the ICC Prosecutor at the Munich Security Conference. This followed a phone conversation with Ms Bensouda in December 2016, according to a source in the MoFA. In the meeting, he asked Ms Bensouda to also “consider those groups and countries that are behind [the] killing of Afghan civilians”. It is not clear if the President meant for an investigation. The website of the President’s office did not give provide details regarding which groups and countries he was referring to or how the ICC might do this. The Afghan government has, however, repeatedly claimed that Pakistan supports Afghan insurgent groups; the NDS, for example, has accused the Haqqani network as being behind the 31 May 2017 terrorist attack in Kabul, in cooperation with the Pakistani intelligence service. It is also not clear whether the President, with this statement, in principle agreed that the ICC should open an investigation in Afghanistan or whether he meant that Pakistan should be investigated instead.
It was reported that the ICC prosecutor stressed in the meeting that she would keep up her cooperation with the Afghan government under the provisions of the ICC procedures. This means the ICC will initiate an investigation in Afghanistan if the information provided by Afghan government does not convince the court about its willingness and ability to prosecute perpetrators of international crimes that have occurred on Afghan soil.
The result of the communications: 15 cases sent to the ICC
Following the two meetings, the Afghan government took further steps to convince the ICC about this ability and willingness to prosecute. It shared two packages of cases that had already been prosecuted in Afghanistan. The five cases in the first set were sent in March 2017. These included the cases of Anas Haqqani and Hafiz uRashid; two senior Haqqani network figures who were tried in 2016 by the primary and appeal courts in Bagram district of Parwan province. Both were sentenced to death on the charge of financing and supporting terrorist attacks carried out by the Haqqani network on Afghan soil. (So far, AAN has been unable to establish details of the other cases sent to the ICC.) In this package, the government also sent the additional arguments about the concepts of Haqullah and Haq ul-Abd in the Amnesty Bill, as requested.
The second package, sent in late April 2017, included ten cases of rape, sexual abuse, murder and torture of war prisoners, committed by Afghan soldiers, that had been addressed by military courts. According to information AAN received from sources with knowledge of these proceedings, none of the convicted soldiers was of senior rank. Based on this information, it may be doubtful whether those crimes fall under the jurisdiction of the ICC.
Afghan civil society activists to the ICC: “Please go ahead”
A group of Afghan civil society activists also met ICC officials in The Hague from 3 to 7 April 2017. The group expressed scepticism about the preparation of the government to have an ICC investigation. Hadi Marifat, a member of the group, said in the meeting: “In the absence of adequate applicable legislation, judicial redress, and political will of the Afghan state to genuinely investigate and prosecute those responsible for international crimes, and the resulting blatant culture of impunity in the country, the ICC must intervene and support the victims in their long quest for justice.” The group spoke in favour of the ICC opening an investigation in Afghanistan.
The ICC keeps its decision open
The information shared by the government over the past months, after the November 2016 Preliminary Examination Report, represents a considerable improvement in its cooperation with the ICC. As AAN reported earlier, the government had previously hesitated as to whether even to receive an ICC delegation and had delayed issuing visas.
Possibly as a result of the communication, the Office of the Prosecutor (OTP) of the ICC has not yet submitted its application to the pre-trial chamber to seek authorisation for an investigation. It seems willing to give the Afghan government another chance to prove its ability and willingness to prosecute alleged perpetrators of war crimes and crimes against humanity. So far, the government has tried to convince the ICC of its goodwill by sharing information, but this is likely to be too small a step to convince the ICC. But better communication with the ICC can help both parties gain a better understanding of each other’s intentions. Afghans – including the government – often do not have a clear understanding of the ICC and its jurisdiction. On the other hand, ICC staff working on Afghanistan situation also may need time to better understand Afghanistan’s context.
The lack of criminalisation of some of the crimes that could fall under ICC jurisdiction, and the lack of clarity on how to address them, remains a concern, because of the still pending Penal Code. The failure to implement existing law is another big challenge. Torture, for example, has been criminalised by the current Afghan Penal Code since October 1976 and by the current Afghan constitution since January 2003, but it is still widely used, as the latest UNAMA torture report showed (the report found that from 1 January 2015 to 31 December 2016 more than a third of 469 conflict-related detainees interviewed by UNAMA “gave credible accounts of being subjected to torture or ill-treatment” – see AAN analysis here). The OTP’s preliminary examination reports also showed that the OTP found a reasonable basis to believe that torture was used by Afghan security forces, including the police, the intelligence service and the army. The OTP stated that the available information did not confirm any prosecution of perpetrators for this crime.
It is then obvious that in order for the Afghan government to convince the ICC of its willingness and ability to prosecute, it will need to show more than mere legal changes – it will need to show that actual steps towards accountability are taken.
Edited by Thomas Ruttig and Sari Kouvo
This article was last updated on 9 Mar 2020