AAN Thematic Dossiers

Thematic Dossier XVI: Afghanistan’s War Crimes Amnesty and the International Criminal Court


The International Criminal Court (ICC) is to decide to whether to open an investigation into war crimes committed in Afghanistan since 2003 Image: ICC logo
The International Criminal Court (ICC) is to decide to whether to open an investigation into war crimes committed in Afghanistan since 2003 Image: ICC logo

The International Criminal Court (ICC) is currently pondering whether to open an investigation into war crimes committed in Afghanistan since 2003, allegedly by the Taleban, the American military and CIA and Afghan government forces. In order to provide context to this possible investigation, AAN is publishing a dossier that brings together our reporting on amnesty and accountability for war crimes in Afghanistan. The dossier, compiled by Sari Kouvo, Ehsan Qane and Kate Clark, covers our reporting on the 2008 Amnesty Law, which provides immunity for past and future war crimes, amnesties given as part of reconciliation efforts, and the fragile efforts to promote transitional justice, to address the legacy of war crimes in Afghanistan.

In 2008, the Afghan parliament passed a law that provided a near blanket amnesty for crimes committed during the conflict between 1978 and 2001. The law also promised an amnesty to anyone currently committing crimes while fighting the Afghan government and international forces if they “cease their enmity” in the future and join a process of national reconciliation. The law was indeed passed in the name of “national reconciliation” but certainly also contributed to protecting the many warlords who had already found their way into the fold of government and parliament, some of whom could have been charged with war crimes or crimes against humanity. The Amnesty Law further marginalized the efforts of human rights and victims’ organisations to promote accountability, truth-seeking and the recognition of the suffering of victims.

Accountability has in fact never really been on the table in the efforts made towards reconciliation since the US-led intervention and fall of the Taleban regime in 2001. The Bonn Agreement, that laid the framework for the post-Taleban administration, made no reference to accountability or transitional justice. The Action Plan for Peace, Justice and Reconciliation (the so-called transitional justice action plan) also adopted in 2005 included no firm measure for accountability. The different formal efforts to move towards reconciliation with the Taleban have included or alluded to amnesty and the peace deal with Hezb-e Islami in September 2016 included a specific amnesty clause.

Amnesties for war crimes and gross human rights violations are no longer considered legal under international law. The shift towards demanding accountability for conflict-related crimes has been gradual, based on a developing understanding that, while amnesties are important carrots in peace negotiations, they are liable to harm long-term peace and stability.

The Amnesty Law and the antipathy to domestic accountability measures shown by the various Afghan administrations since 2001 helped bring Afghanistan within the sights of the International Criminal Court (ICC). Its Office of the Prosecutor is currently considering whether to seek authorisation from the court’s Pre-Trial Chamber to begin a formal investigation into war crimes and crimes against humanity committed by the different parties to the Afghan conflict since 1 May 2003 (when Afghanistan became a state party to the Rome Statute, which established the International Criminal Court). The OTP had said, on 14 November 2016, that it would decide whether to apply for authorisation “immediately,” but has yet to announce its intention either way. If the ICC does decide to go ahead, it could investigate accusations against both Afghan government and American forces that they have tortured conflict-related detainees (see AAN’s dossier on torture for more detail) and against the Taleban and Haqqani network that they have committed murder, intentionally targeted civilians and humanitarian personnel, conscripted children and treacherously killed or wounded combatant adversaries.

Why the delay in deciding?

As mentioned, the Officer of the Prosecutor (OTP) has been weighing up whether to seek authorisation to investigate for almost a year. The OTP had said that the admissibility of the cases could be challenged with “further information that could be provided by the relevant national authorities in the course of the preliminary examination or any subsequent investigation.” The Afghan government requested the chief prosecutor and the president of the ICC, Judge Silvia Fernandez de Gurmendi in November 2016 and January 2017 to give Afghanistan one year’s time. The government argued the investigation would harm the Afghan peace process.

The Afghan government has also sent information concerning 15 cases which have been prosecuted. It was an attempt to show that it was willing and able to address international crimes perpetrated on Afghan territory, meaning the ICC did not need to (for more details, see AAN’s previous dispatch).

A source in the Afghan government told AAN that most of these cases involved low profile Afghan security personnel who had perpetrated relatively minor offenses or had failed to prevent terrorist attacks. For example, after a terrorist attack in Baghlan province in November 2007, seven MPs and more than 60 civilians, mostly children, were killed, the Afghan judiciary did try some Afghan security personnel for failing to provide adequate security. The fifteen cases also included those Anas Haqqani and Haafiz ul-Rashid, two senior members of the Haqqani network who were tried by the primary and appeals court of Bagram district in Parwan province. Both men were convicted and given the death penalty for financing terrorist attacks. Their cases are now in the Supreme Court for a final review. However, trying alleged insurgents of crimes has not generally been a problem for the government; rather, it is the failure to prosecute state officials who have ordered or carried out torture, or even put in place adequate procedures to prevent torture which has been so problematic. In term of quality and quantity, the fifteen cases were unlikely to convince the OTP that the government was now serious about prosecuting war crimes perpetrated on its territory.

In May 2017, the expert Convention against Torture committee also delivered hard-hitting comments about Afghanistan’s record on preventing torture (see AAN analysis here and here). The committee welcomed some measures that Kabul had taken, including passing laws and setting up new bodies, particularly monitoring cells within the National Directorate of Security (NDS); it also welcomed the Attorney General’s commitment to prosecute. However, it said these measures were not yet preventing torture. The committee said it remained “gravely concerned” about “the general climate and culture of impunity in Afghanistan” and pointed to the large number of alleged human rights violators who were senior government officials, including Kandahar Police Chief Abdul Razeq. The committee also called for the Amnesty Law to be repealed, criminal investigations to be undertaken and public servants to be vetted so that torturers were not given government office. (See also UNAMA’s latest report on this subject here).

Political pressures

Although the legal case for the investigation to be launched seems clear, there are sensitivities, firstly because the US, a global superpower, could be investigated. It is not a signature to the Rome treaty, but its personnel in Afghanistan fall under the jurisdiction of the ICC because Afghanistan is a signatory. That also means that, even though both the Karzai  and Ghani governments promised in Bilateral Security Agreements to neither prosecute US service people alleged to have committed crimes on Afghan soil or hand them over to third parties for prosecution, the ICC can still investigate them. Given what a powerful player the US is, deciding to investigate it would be a politically courageous move.

At the same time, deciding not to would be politically damaging, given that the court had come under fire from the African Union for allegedly only putting Africans on trial. The ICC is taking some action elsewhere, including an investigation ongoing into war crimes in Georgia (possibly committed by Georgian, South Ossetian and Russian armed forces) and preliminary examinations into Ukraine, the United Kingdom, concerning possible war crimes in Iraq and Israel concerning possible war crimes in Gaza, the West Bank and East Jerusalem. Even so, if it decided not to investigate the US military and the CIA over the torture of conflict-related detainees on Afghan soil, that could be perceived as the ICC bowing to superpower pressure.

President Ghani has been making last-ditch attempts to stop a possible authorisation to investigate from going ahead. He met the ICC’s Prosecutor, Fatou Bensouda on the sidelines of the UN General Assembly in New York on 22 September 2017 to try and persuade her not to desist. On 3 October 2017, Nader Nadery, the Afghan focal point for the ICC who was also present in the meeting, told AAN that “President Ghani told the Prosecutor of the ICC that morally he is at the side of the ICC [to provide justice for war victims] but legally he is not.” He did not explain further, but said that Bensouda’s arguments about the “admissibility of cases” were not convincing. The US and Afghan ambassadors to the UN also met to decide on a common position on the ICC.

If the Office of the Prosecutor does seek authorisation to investigate, Afghanistan’s Amnesty Law will be a major factor behind that decision, proof that, whatever President Ghani and his government says, war crimes and crimes against humanity are not being addressed by domestic or other legal bodies in Afghanistan.

Dossier outline

In order to provide context to the ICC’s decision – or not – to investigate, AAN has pulled together this three part dossier on amnesty, reconciliation and broader themes of transitional justice into a dossier.

The first part, Amnesty, Peace Deals and Reconciliation, showcases AAN’s reporting on the Amnesty Law and our analysis of how amnesties have been included in reconciliation and reintegration programmes and actual peace deals. It does not include all AAN’s reporting on attempts at peace-making with the Taleban or the recent peace deal with Hezb-e Islami; these reports have been collected elsewhere (for more on the peace deal with Hekmatyar, see here and on reconciliation, see here.)

The second part of the dossier, The International Criminal Court and Other War Crimes Trials, brings together AAN’s reporting on the ICC’s preliminary examination and its possible investigation. This section also looks at the few other war crimes trials that have been taken place in Afghanistan, those which have taken place in the Netherlands and the United Kingdom where ‘universal jurisdiction’ has been used to try Afghans accused of having committed war crimes in Afghanistan, and the one successful private litigation in the United States.

The third part, Transitional Justice, Truth-Seeking and Access to Justice for Victims, brings together AAN’s reporting on the efforts to promote transitional justice in Afghanistan. This includes the 2013 paper Tell Us How this Will End? which traces transitional justice and reconciliation throughout the past three decades of conflict in Afghanistan. This section also includes dispatches on the culture of impunity and the fragile truth-seeking and other efforts to ensure access to justice for victims.

 

Amnesty, Peace Deals and Reconciliation

1. After two years in legal limbo: A first glance at the approved ‘Amnesty law’

Author: Sari Kouvo
Date: 22 February 2010

After two years in legal limbo: A first glance at the approved ‘Amnesty law’

 

2. Hekmatyar taken off UN sanctions list: Paving the way for his return – and Hezb-e Islami’s reunification?

Author: Thomas Ruttig

Date: 11 February 2017

Hekmatyar taken off UN sanctions list: Paving the way for his return – and Hezb-e Islami’s reunification?

 

3. Almost Signed? The peace agreement with Hezb-e Islami

Author: Thomas Ruttig and Martine van Bijlert

Date: 21 May 2016

Almost Signed? The peace agreement with Hezb-e Islami

 

4. In Search of a Peace Process: A ‘new’ HPC and an ultimatum for the Taleban

Author: Thomas Ruttig
Date: 26 February 2016

In Search of a Peace Process: A ‘new’ HPC and an ultimatum for the Taleban

 

5. Where criminals forgive themselves

Author: Fabrizio Foschini
Date: 17 July 2011

Where criminals forgive themselves

 

6. Guest Blog: Amrullah Saleh’s new language on the Taleban

Author: Ahmad Shuja
Date: 19 June 2011

Guest Blog: Amrullah Saleh’s new language on the Taleban

 

7. Flash to the Past: Missed Opportunities for Reconciliation

Author: Anand Gopal
Date: 15 November 2010

Flash to the Past: Missed Opportunities for Reconciliation

 

8. Reconciliation in Afghanistan: Can the UN right some wrongs?

Author: Horia Mosadiq
Date: 31 October 2010

Reconciliation in Afghanistan: Can the UN right some wrongs?

 

9. Time to Work with Warlords? What?

Author: Thomas Ruttig
Date: 30 December 2009

Time to Work with Warlords? What?

 

The International Criminal Court and Other War Crimes Trials

10. Held Accountable for Torture: CIA psychologists compensate family of dead Afghan

Author: Kate Clark

Date: 29 August 2017

Held Accountable for Torture: CIA psychologists compensate family of dead Afghan

 

11. Investigating Post-2003 War crimes: Afghan Government wants “one more year” from the ICC

Author: Ehsan Qaane

Date: 27 June 2017

Investigating Post-2003 War crimes: Afghan Government wants “one more year” from the ICC

 

12. Assadullah Sarwari Freed from Prison: What chances of war crimes trials in Afghanistan?

Author: Ehsan Qaane and Sari Kouvo
Date: 6 January 2017

Assadullah Sarwari Freed from Prison: What chances of war crimes trials in Afghanistan?

 

13. Afghan War Criminal Zardad Freed: No protection for witnesses

Author: Kate Clark

Date: 18 December 2016

Afghan War Criminal Zardad Freed: No protection for witnesses

 

14. One Step Closer to War Crime Trials? New ICC report on Afghanistan

Author: Kate Clark and Ehsan Qaane
Date: 17 November 2016

One Step Closer to War Crime Trials? New ICC report on Afghanistan

 

15. Guest Blog: Let’s Remember Afghanistan on International Criminal Justice Day

Author: Ajmal Pashtoonyar

Date: 17 July 2011

Guest Blog: Let’s Remember Afghanistan on International Criminal Justice Day

 

16. The ICC’s Planned Visit to Afghanistan: Crimes, capacities and the willingness to prosecute

Author: Ehsan Qaane
Date: 30 June 2016

The ICC’s Planned Visit to Afghanistan: Crimes, capacities and the willingness to prosecute

 

Transitional Justice, Truth-Seeking and Access to Justice for Victims

 

17. Tell Us How This Ends. Transitional Justice and Prospects for Peace in Afghanistan

Author: Sari Kouvo and Patricia Gossman    Date: 30 June 2013

Tell Us How This Ends. Transitional Justice and Prospects for Peace in Afghanistan

 

18. A 36-Year Wait for Justice? Dutch arrest suspected Afghan war criminal

Author: Kate Clark

Date: 1 November 2015

A 36-Year Wait for Justice? Dutch arrest suspected Afghan war criminal

 

19. Impunity and Silence: The meagre reaction to the latest HRW report

Author: Thomas Ruttig

Date: 4 March 2015

Impunity and Silence: The meagre reaction to the latest HRW report

 

20. A Second ‘Death List’: More on those forcibly disappeared in the civil war

Author: Patricia Gossman
Date: 28 May 2014

A Second ‘Death List’: More on those forcibly disappeared in the civil war

 

21. Death List Published: Families of disappeared end a 30 year wait for news

Author: Kate Clark

Date: 26 September 2013

Death List Published: Families of disappeared end a 30 year wait for news

 

22. Correcting Details: More on the NYT Reporting the Human Rights Mapping

Author: Kate Clark
Date: 30 July 2012

Correcting Details: More on the NYT Reporting the Human Rights Mapping

 

23. Victims Organisations Sound a Wake-up Call

Author: Sari Kouvo
Date: 13 April 2011

Victims Organisations Sound a Wake-up Call

 

24. The Start of Impunity: the killing of Dr Abdul Rahman

Author: Kate Clark

Date: 21 February 2011

The Start of Impunity: the killing of Dr Abdul Rahman

 

25. Justice in Afghanistan: the Insect and the Elephant

Author: Gran Hewad

Date: 2 August 2010

Justice in Afghanistan: the Insect and the Elephant

 

 

 

 

 

 

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