Reactions: ICC investigation for Afghanistan?

 An Afghan girl holds her brother as she walks through a refugee camp in Herat on in January 2017. © Aref Karimi / AFP/Getty Images
ICC Prosecutor Fatou Bensouda's announcement that her office is seeking an investigation into war crimes and crimes against humanity allegedly committed by all sides to the Afghan conflict has been broadly welcomed by civil society and other observers as a crucial if tentative step towards justice for victims. The investigation, should it be green-lighted by ICC judges, would potentially cover any ICC crimes committed by any party to the conflict - irrespective of their nationality - on the territory of Afghanistan after the 2003 United States-led invasion of the country. The prosecutor also indicated that related war crimes allegedly committed on the territory of other ICC member states could be an area of scrutiny.

On 3 November 2017, ICC Prosecutor Fatou Bensouda announced that she will request authorization to open an investigation into war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other ICC member states. A decision on the request by pre-trial judges could take up to three months.

The alleged crimes include: murder; persecution; gender crimes; intentionally directing attacks against humanitarian personnel and against protected objects; conscription of children; and sexual violence. 

Since 2009, fighting in Afghanistan has killed 24,841 civilians and injured 45,347 according to the UN, with 2016 proving the deadliest yet for children.

Bensouda acknowledged that the investigation will need the help of the government of Afghanistan and the international community to succeed, stating: "The ultimate focus will be upon those most responsible for the most serious crimes allegedly committed... We will always strive to do everything possible to ensure that our engagement in the exercise of our mandate is sensitive to the plight of victims."


So what are the reactions so far?

The Afghanistan Independent Human Rights Commission has welcomed the Prosecutor’s decision, saying it believes that: "Supporting and providing justice by using any domestic and international mechanism is crucial to end impunity, prosecute perpetrators and bring justice for victims.” It called on the government to fulfil its obligations according to the Rome Statute and fully assist the ICC.

The Transitional Justice Coordination Group, a network of 26 individuals and civil society organisations in Afghanistan, called on the Pre-Trial Chamber to authorise the investigation and urged the government to help ICC investigators and protect victims and witnesses. It said justice could help build a sustainable peace in the country.

"Generations have suffered from the international crimes that have been committed in Afghanistan, where there is neither peace nor any genuine accountability process, including before the domestic courts. The situation in Afghanistan is still not changing. Now it’s the time for the ICC to step in," said FIDH Vice-President and Armanshahr/OPEN ASIA Executive Director, Guissou Jahangiri.

Amnesty International’s Head of International Justice Solomon Sacco labelled the move a "seminal moment for the ICC," stating: "Justice for victims of the Afghanistan conflict has taken far too long to arrive, but investigations like this one are the reason the Court was set up – to provide a last chance for justice when states parties have failed to deliver it."

We welcome the ICC President’s action convening a pre-trial chamber of judges to consider the Prosecutor’s request to begin an investigation in Afghanistan,” said Human Rights Watch. “We look forward to reviewing the scope of the Prosecutor’s filing when it is public,” the statement said. “Having documented egregious crimes in Afghanistan that have gone unpunished over many years, we hope this step will open a path to justice for countless victims there.”

Many commentators have reflected on the potential for alleged US crimes to come under ICC attention. 

According to the International Federation for Human Rights, "[t]he ICC could investigate these allegations despite the United States not being a State Party to the Rome Statute. The Court has jurisdiction over all international crimes committed on a State Party’s territory (including Afghanistan, as well as Poland, Romania, and Lithuania, where so-called US ‘black sites’ were reported), regardless of the nationality of the perpetrators. According to its November 2016 report, the ICC Office of the Prosecutor has a reasonable basis to believe that members of the US armed forces and the CIA allegedly committed the war crimes of torture and inhuman treatment, rape and outrages upon personal dignity."

Regarding the areas that the investigation may cover, Afghanistan Analysts Network has expressed: "The most attention would be on allegations against the US, specifically that members of its intelligence agency, the CIA, and its military, during interrogations of security detainees and in conduct supporting those interrogations."

Katherine Gallagher, Senior Staff Attorney at the US-based Center for Constitutional Rights, has emphasised the need to hold the guilty accountable: "The opening of a comprehensive investigation into the Afghanistan situation would be the first time that US nationals from the military, the CIA, or private contractors could be held criminally accountable for war crimes and crimes against humanity committed in Afghanistan... This long overdue message that no one is above the law is particularly important now, as the Trump administration ramps up military machinations in Afghanistan and embraces endless war with no plan for an end in sight.”  

“An ICC investigation would face myriad hurdles, especially given the likely refusal of the U.S. government to cooperate," said Jamil Dakwar and Joshua Manson from the ACLU Human Rights Program. "However, if arrest warrants are one day issued, the officials would be subject to immediate arrest in the 124 countries that are participants in the ICC, including every country in the European Union. This dramatic development would have been unnecessary — and avoided — if the United States had fully investigated, prosecuted, and punished instances of torture, as international law requires. Instead, the Obama administration opened two narrow investigations and closed both without charging anyone.”

However, there are reservations about the attention on the US. "The ICC may conclude that while the allegations against US personnel are sufficiently grave to be included in the investigation at this stage, they are not sufficiently grave to warrant an individual case against US personnel," said Harvard law professor Alex Whiting. "The Prosecutor’s policy on case selection and prioritization indicates that she should focus first on the more grave, widespread and enduring crimes that have allegedly been committed by the Taliban and the Afghan government, before even considering the allegations against US personnel."

"Once the investigation starts, there will be a temptation for the US to overreact and return to a stance of complete hostility to the ICC. This would be a mistake," Whiting added. "The US tried this approach in the first years of the Court, but soon the Bush administration concluded that it was in US interests to find ways to cooperate with the Court. Although the US and several other major powers are not members of the ICC, 123 states are, including nearly every country in NATO. The Court is not going anywhere."

There has no official comment from the Afghan, US or other governments.

Afghanistan is an ICC member state, having acceded to the Rome Statute in February 2003. In 2007, the ICC prosecutor announced a preliminary examination to determine whether conduct by Afghan and foreign government forces, as well as anti-government forces such as the Taliban, after 1 May 2003 may amount to war crimes and crimes against humanity. In 2018, a new criminal code incorporating provisions on war crimes, crimes against humanity, genocide, and the crime of aggression - the four core international crimes within the subject matter jurisdiction of the ICC - will come into force in Afghanistan. 

Background on the ICC and Afghanistan