War Crimes Investigation in Afghanistan by the ICC: It’s happening. What will it mean?

Original link (please quote from the original source directly): 
https://www.afghanistan-analysts.org/en/reports/rights-freedom/war-crimes-investigation-in-afghanistan-by-the-icc-its-happening-what-will-it-mean/

Ehsan Qaane Kate Clark

The International Criminal Court (ICC) has authorised an investigation into war crimes and crimes against humanity occurring in Afghanistan since 2003, by the Taleban, and United States and Afghan government forces. The investigation will also cover crimes related to the Afghan conflict that took place on the territory of other ICC member states, thereby bringing the possibility for justice for those rendered by the CIA to black sites in Poland, Lithuania and Romania and allegedly tortured. The court decision reversed an earlier rejection for an investigation by the Pre-Trial Chamber of the ICC, and ignored pleas not to investigate by the Afghan government and threats by the United States. AAN’s Ehsan Qaane and Kate Clark have been looking at what the court’s ruling might mean for the victims of Afghanistan’s war and for any future peace talks.

Despite the best efforts of the Afghan and American governments, and opposition within some quarters of the court, the ICC has finally agreed to move ahead with an investigation into war crimes and crimes against humanity in Afghanistan. The decision comes 13 years after ICC Chief Prosecutor Fatou Bensouda began her preliminary examination of the ‘Afghanistan situation’, more than two years since she recommended the Pre-Trial Chamber authorise an investigation, and 10 months after it decided against an investigation. The decision by the five judges of the ICC’s Appeal Chamber was unanimous that an investigation should go ahead (read their decision here and the press release from the court here).

Last year, the three judges of the Pre-Trial Chamber had rejected a request to investigate, arguing this would not be in the ‘interests of justice’, although they agreed with Bensouda’s preliminary examination that war crimes and crimes against humanity had taken place, were grave enough and of a scale to merit the court’s attention, and that domestic courts had been either unwilling or unable to take action. Both the prosecutor and different groups of victims’ legal representatives appealed against this judgement (1) and the Appeals Chamber met to hear their arguments and those supporting the Pre-Trial Chamber’s decision in December 2019. Now, in the words of the ICC press release, it has decided that:

…the Pre-Trial Chamber should have addressed only whether there was a reasonable factual basis for the Prosecutor to proceed with an investigation, in the sense of whether crimes have been committed, and whether the potential case(s) arising from such investigation would appear to fall within the Court’s jurisdiction.

Furthermore, the appeal judges noted that the Pre-Trial Chamber’s decision had contained “all the necessary factual findings” and confirmed that there was “a reasonable basis to consider that crimes within the ICC jurisdiction have been committed in Afghanistan.” It has therefore decided not to send the matter back to the Pre-Trial Chamber for a fresh decision but to itself authorise the opening of an investigation.

The judges’ decision focuses on the alleged crimes that have taken place, not the alleged perpetrators. However, in her preliminary examination, Bensouda named the Taleban for a range of crimes, including murder and deliberately attacking civilians, and the CIA and US military, and the Afghan National Security force (ANSF) for torture. (2) The 695 submissions to the court on behalf of thousands of victims in December 2017/January 2018, individually or in (sometimes very large) groups (analysis here and here), testified to an even greater range of alleged war crimes and crimes against humanity, mentioning:

[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.

The court has now authorised not only the investigation of alleged crimes committed on Afghan territory, as well as alleged crimes which had a nexus to the Afghanistan conflict. This brings into the purview of the court the alleged rendition and torture of Afghans and others by the CIA to black sites in third countries – here the date of jurisdiction of the court is earlier – 1 July 2002 when they became members of the court, as opposed to 1 May 2003 when Afghanistan became a member. Such third countries mentioned previously by Bensouda are Poland, Lithuania and Romania. Katherine Gallagher, lawyers for a group of alleged victims of the CIA, also mentioned in a tweet Djibouti and Jordan, calling on any member state which had “cooperated with the #US in running its global #torture program” to now cooperate with the prosecution in “quickly advancing” the investigation.

Implications of the decision to investigate

The Appeal Court’s judgement has many implications, firstly of course for Afghans and other victims of war crimes who have yet to see their alleged perpetrators put on trial. The ICC report into victims’ views (see AAN analysis here) found that, overwhelmingly, they wanted an investigation – 98 per cent of those who made submissions. The Court said they:

… 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].

Chair of the Afghanistan Independent Human Rights Commission (AIHRC), Shahrzad Akbar tweeted her “[g]ratitude to victims who submitted testimonies & brave Afg organizations & activists who advocated fearlessly & tirelessly for this outcome.” She said the court’s judgement promised “justice” to the victims of war and was “welcome news” for Afghanistan.

The Afghan government, however, will be dismayed by the judgement. Caught between its legal duty as an ICC member to cooperate with the investigation and the wrath of its main supporter the United States if it does so, it will have to tread a difficult and tricky path. The Afghan ambassador to The Hague, Homayun Azizi had already said that Afghanistan would use article 18 of the Rome Statute to challenge the admissibility of particular cases; the prosecutor, he told AAN, would then have to stop her investigation and have a monitoring position and could only intervene in those cases if she proved they were not being genuinely prosecuted. ICC spokesperson Fadi El Abdullah, however, told AAN that article 18 can only be used when the prosecutor initiates an investigation. If Kabul was to try such a move, it seems, it would have to be well down the line, and would require them to demonstrate that they had the will and capacity to investigate and prosecute individuals at the highest levels of responsibility, something they have, so far, been unable to do.

Secondly, the court has stood up to US bullying. The US is not a member of the ICC and has always argued vehemently that its nationals are not bound by its jurisdiction. However, Afghanistan and other states are members and the court therefore does have jurisdiction for alleged war crimes taking place on their soil by anyone of any nationality. Washington will not be happy with today’s ruling. In September 2018, then Secretary of State John Bolton made a ferocious attack on the court (see AAN reporting here), calling it “ineffective, unaccountable, and indeed, outright dangerous” and alleging its central aim had always been to “constrain the United States,” not just “targeting individual US service members, but rather America’s senior political leadership, and its relentless determination to keep our country secure.” In April 2019, the US revoked Bensouda’s visa.

The court may also just have made itself much more relevant. Having been criticised for only ‘investigating alleged African perpetrators of war crimes’, it has now decided to embark on an investigation which will partly cover the citizens of a superpower.

Conclusion: the way ahead

The ICC ruling has come, by chance, just days after the US and the Taleban signed an agreement which envisages intra-Afghan peace talks. For US Secretary of State, Mike Pompeo, this made the ruling “all the more reckless… to come just days the United States signed a historic peace deal on Afghanistan which is the best chance for peace in a generation.” Others have found serendipity in the timing. Human Rights Watch’s Patricia Gossman, contends that any sustainable peace will need to be underpinned by justice and the ICC investigation should be a reminder of that. She also commented on how the failings of the post-Taleban settlement have blighted the last two decades:

…the Bonn Agreement, signed in December 2001 after the defeat of the Taliban government, failed to provide justice for rights violations by all sides and fuelled further atrocities by allowing serious human rights abusers to maintain official and unofficial positions of power.

That decision, to deliberately ignore war crimes, has meant impunity for perpetrators and continuing instability and conflict in Afghanistan. This was also a message from some of the victims who made submissions to the court in 2017 and 2018, many of whom spoke of their continuing fear of ‘warlords’, reprisals and the lack of ways to get justice through the Afghan courts. It was one reason for many to urge the ICC to investigate. This person, for example, quoted in the ICC’s report on victims’ submissions said many who had not been able to contact the courts needed justice and needed to be remembered:

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.

However, the way ahead now for the court will not be easy or straightforward. The US had already threatened economic sanctions (not clear if against the court or its personnel) if the ICC went ahead with an investigation of its nationals and today Pompeo promised to take “all necessary measures to protect our citizens from this renegade, unlawful, so-called court.”

Moreover, an ICC investigation is not itself without peril. The security threats and restrictions will be challenging, particularly given the caution that the court has tended to show when operating in complex security environments. The investigation will take many years, and will eventually focus in on just a handful of perpetrators, some of whom will doubtless try to flout an ICC indictment if or when it comes. Given these hurdles, the perceived success of this investigation will depend significantly on the ICC’s ability to spend time in Afghanistan, and communicate its unfamiliar process to Afghans, in particular the Afghan victims of war who are hungry for justice. Up till now, it has been very poor at communicating. For now, however, victims and their supporters are encouraged by the court’s ruling – and all too aware of how bleak the situation would feel if the Appeals Chamber had ruled the other way.

Edited by Rachel Reid

 


Annex: Chronology of the ICC’s engagement in Afghanistan

  • In February 2003, the Afghan government deposited its instrument of ratification to the Rome Statute, the establishment document of the ICC.
  • In 1 May 2003, the Afghan government become a state party of the ICC.
  • In 2007, the Office of the Prosecutor of the ICC began a preliminary investigation into the situation of the Afghanistan. The aim was to find out if any Rome Statute crimes were committed related to the ongoing armed conflict of Afghanistan since its membership, and whether there had been domestic accountability efforts in relation to these crimes.
  • In 2011, for the first time, the Office of the Prosecutor of the ICC published its first annual report about the Afghanistan situation. In its two page report, the OTP named five types of crimes (killings, torture, attacks on humanitarian targets and the UN, attacks on protected objects and recruitment of child soldiers), criminalised in the Rome Statute, which allegedly occurred in relation to the Afghanistan armed conflict.
  • In 2016, the OTP annual report said that their findings showed there are reasonable based to believed war crimes and crimes against humanity occurred by the Taleban and its affiliated, the Afghan national security forces as well as the US army and its Central Intelligence Service (CIA). The OTP said that it would soon make its decision to submit its request of authorisation to open a full investigation into the Situation of Afghanistan to a Pre-Trial Chamber. After the publication of this report, the Afghan government established regular direct communication with the ICC. The Afghan government sent at least three delegations to The Hague, arguing that while they were willing to investigate war crimes nationally, they needed at least another year to build capacity. In an attempt to demonstrate willingness, the office of the Attorney General had set up a War Crimes Unit, and articles from the Rome Statute were incorporated into Afghan law.
  • In November 2017, the ICC’s Prosecutor submitted her request to authorise an investigation into the Afghanistan situation to a Pre-Trial Chamber of the ICC. After the submission of the Prosecutor’s request, the US government put political pressure on the ICC to not authorise the request. Their argument was that the ICC does not have jurisdiction over the US as the US is not a party to the ICC.
  • In April 2019, the Pre-Trial Chamber II of the ICC rejected the request, arguing that there was no reasonable basis to believe the investigation served “the interests of justice”, although they accepted that there was a reasonable basis to believe that war crimes and crimes against humanity were committed in the territory of Afghanistan by the Taleban, the Afghan national security forces and the US army and CIA, as well as in the territory of other state parties, including Poland, Romania and Lithuania by the US army and CIA. The Chamber also acknowledged that there had not been domestic prosecutions of perpetrators.
  • In June 2019, the OTP and three victims’ legal representatives appeared before the Pre-Trial Chamber to contest their refusal to authorise an investigation. They argued that the Pre-Trial Chamber had erred in law by attempting to assess “the interests of justice” or to have a positive determination of the interests of justice.
  • In December 2019, the Appeals Chamber of the ICC held three-day public hearing where the representatives of the OTP, victims’ representatives, the defence lawyer of the Afghan government and some civil society and academia presented their arguments against or in favour of the Pre-Trial Chamber.
  • On 5 March 2020, the judges of the Appeals Chamber reversed the Pre-Trial Chamber’s decision and authorised a full investigation. The Appeals Chamber, in its judgment, argued that the Pre-Trial Chamber did not have the power to assess the interests of justice.

(1) Only the Prosecutor’s appeal was allowed by the Appeals Chamber, but the arguments of victims’ groups were heard by the court as well as representations from those arguing against an investigation, including from the Afghan government.

(2) In Bensouda’s November 2016 Preliminary Examination Report (which we analysed here), she wrote that there was a reasonable basis to believe that the Taleban and Haqqani network have 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…” (For the full quote, see paragraphs 206 and 207 of the report.)

The Afghan government faces an investigation for the war crimes of torture and cruel treatment; outrages upon personal dignity pursuant to article; and sexual violence. In the 2016 Preliminary Examination Report, the OTP named the Afghan intelligence agency, the National Directorate of Security (NDS), the Afghan National Police, Afghan National Army, Afghan National Border Police and the Afghan Local Police as alleged perpetrators and said it estimated that 35 to 50 per cent of all conflict-related detainees “may be subjected to torture,” carried out in a “state of total impunity.”

The 2016 Preliminary Examination Report also named the CIA and US military, that during interrogations of security detainees and in conduct supporting those interrogations, they

… 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 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.

Revisions:

This article was last updated on 9 Mar 2020