The Pre-Trial Chamber II of the International Criminal Court found that the Taliban and other armed groups have committed international crimes, more specifically crimes against humanity and war crimes.
The Taliban initially emerged in Pakistan in the early 1990s. Their influence in Afghanistan, at first, was limited to the south-western of this country. In 1996, they captured the capital of Afghanistan, Kabul, and by 1998, they managed to take control of almost 90% of this country. They remained in power until they were defeated by the US-led coalition in 2001.[1] The armed conflict that followed years after was the result of the Taliban’s effort to return to power. They waged a guerrilla style armed insurgency against the Afghan government and the international forces that supported it, during which many civilians were killed.[2] With the withdrawal of the US forces in late 2021, the Afghan Taliban finally gained power over the country and established the Islamic Emirates of Afghanistan.[3]
According to an examination made by the prosecutor of the International Criminal Court (ICC) in 2017, anti-government armed groups, particularly the Taliban and their affiliates, have been responsible for the death of thousands of civilians and deliberate targeted killings.[4] Even in their public official documents and statements, the Taliban have always expressed their policy of attacking civilians. The result of this examination indicated that members of the Taliban and other armed groups have committed international crimes and more specifically war crimes and crimes against humanity.[5] This raises the question regarding the jurisdiction of the ICC to prosecute such crimes when committed by non-state actors.
The starting point is to establish the general admissibility of the ICC in prosecuting crimes. The ICC has jurisdiction over a case if it is not under investigation or prosecution by a competent state court. If the case is under investigation, there should be signs of unwillingness or genuine inability in carrying on with it and if there already has been an investigation, the concerned persons should have not been prosecuted.[6] In the case of Afghanistan, the issue with national investigations was that Afghanistan had not until 2017 updated its 1976 Criminal Code to cover international crimes. Later in 2017, Afghanistan enacted a new criminal code that included provisions on war crimes, crimes against humanity, genocide and crime of aggression, which fell under the jurisdiction of the ICC. This provided Afghanistan with the ability to address Rome Statute crimes in its domestic courts.[7] However, there was reason to doubt that the Afghan government had initiated effective investigations or prosecutions.[8] As a result, in the case of crimes committed by the Taliban and other armed groups, the Pre-trial Chamber II concluded in 2019 that there are no national proceedings against those who appear responsible for crimes under the jurisdiction of the ICC.[9] This allowed the ICC to further their investigations into the details of the crimes committed by the Taliban.
With regard to war crimes, Article 8 of the Rome Statute states that it can investigate such crimes only if they are committed during either an international armed conflict (IAC), the parties of which are states, or a non-international armed conflict (NIAC), which regulates the conflict between states and non-state actors.[10] This means that in situations of internal disturbances such as riots, isolated and sporadic acts of violence, the ICC cannot exercise its jurisdiction. In the case of the Taliban, there was great controversy over which type of conflict it was. Several scholars such as Andrea Bianchi argued the blurring of the lines between IAC and NIAC when it came to the armed conflict in Afghanistan.[11] This discussion was of high importance; if the war was to be excluded as an IAC, it would not simply fall under the definition of NIAC because IHL requires a certain threshold for a non-state actor to be considered a party to a NIAC. In 2006, the Supreme Court of the United States (US) clarified this situation in the case of Hamdan v Rumsfeld by dismissing the existence of an IAC between the US and the non-state actors in Afghanistan. The Supreme Court argued that armed conflicts that do not “involve a clash between nations” are not of an IAC nature.[12]
In light of the statement of the Supreme Court, it is now necessary to determine whether the Taliban can satisfy the elements needed for a non-state actor to be considered a party to a conflict. The case law of the International Criminal Tribunal of Former Yugoslavia (ICTY) found that apart from being in a state of protracted armed violence, non-state actors must also possess a certain level of organisation to qualify as a party to the conflict and thus fall under the scope of article 3 common to the four Geneva Conventions (GC); the article which is applicable in cases of NIAC.[13] Additional Protocol II further added more criteria which includes having a responsible command, control over territory and the ability to carry out sustained and concerted military operation.[14] Before taking over Afghanistan in 2021, the Taliban had demonstrated sufficient organisation throughout the years and their issuance of a Code of Conduct in 2006 was evidence of a chain of command and internal structure among their members.[15] However, there were different accounts about their territorial control of Afghanistan. Some reports indicated that in 2008 the Taliban had expanded their sphere of influence to 72% of the country and some argued that they were not in control of any specific large part of the country but rather had influence in areas that were under the control of the government.[16] Some scholars suggested that the territorial control is a functional matter and as long as the non-state actor is able to carry out sustained military operations, requirements would be met. In this case, The Taliban’s continuous military operations against governmental armed forces over the years, the intensity of the conflict and the high level of casualties were just other elements that categorised the Taliban as an armed non-state actor party to a NIAC.[17]
Eventually, the ICC stuck to the dichotomy in classifying the armed conflict in Afghanistan as a NIAC. This was reflected in a decision made by the Pre-Trial Chamber II in 12 April 2019. Paragraph 65 of the “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation in to the Situation in the Islamic Republic of Afghanistan” notes:
“the conflict still ongoing consists… of protracted armed hostilities between governmental authorities and organised groups and likewise of clashes between such groups to an extent exceeding internal disturbances and tensions such as riots or isolated and sporadic acts of violence; and therefore qualifies as a non-international armed conflict under the meaning of the applicable law.”[18]
What is more, Article 8(2)(c) and (e) of the Rome Statute provide the definition of war crimes committed in a NIAC. Based on these Articles, war crimes are serious violations of article 3 common to the four Geneva Conventions of 1949 and other serious violations of the laws and customs applicable in non-international armed conflicts within the framework of international law.[19] According to the ICC prosecutor’s examination, the Taliban have committed a number of war crimes mentioned under article 8(2)(c) and (e).[20] They are responsible for murder, intentionally directing attacks against the civilian population, intentionally directing attacks against humanitarian personnel, intentionally directing attacks against protected objects such as schools, hospitals, shrines and mosques, conscripting or enlisting children under the age of fifteen years or using them to participate actively in hostilities and killing or wounding treacherously a combatant adversary.[21] Therefore, by satisfying all the elements, the Taliban can be subject to be prosecuted for war crimes by the ICC.
As for crimes against humanity, Article 7 of the Rome Statute states that for a crime to be considered a crime against humanity, it should be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”.[22] It was generally accepted that the concept of such crimes encompassed a state policy component and thus only states could commit such crimes.[23] However, the Trail Chamber of the Tadić case of 1997 found that crimes against humanity can also be committed in the presence of “a governmental, organisational or group policy”.[24] Therefore, the Chamber held that the law of ‘crimes against humanity’ has developed to include “forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within, defined territory”.[25] In the case of the actions committed by the Taliban and other armed groups, the decision of the Pre-Trial Chamber of 2019 found that there is reasonable basis to believe that crimes against humanity have been “committed since 1 May 2003 as part of a widespread and systematic attack against civilians perceived as supporting the Afghan government and foreign entities, or otherwise opposing their rule and ideology.”[26] Some instances of such crimes, mentioned under article 7 of the Rome Statute, and committed by the Taliban and their affiliates include murder, imprisonment or other severe deprivation of physical liberty and persecution against any identifiable group or collectivity on political grounds and on gender grounds. [27]
With all said above, the ICC has every right to exercise its jurisdiction on the crimes committed in Afghanistan. All the threshold and elements for a NIAC are present to hold non-state actors responsible in front of the ICC. Especially with the current situation going on now in Afghanistan after the Taliban took over the country in 2021, it is even more important to pursue a prosecution as there is no hope that there would be a national investigation on this in the future. It is highly unlikely that the Taliban will ever want to prosecute members of themselves when they believe their crimes were a sacred jihad and in the name of religion. Not only will they not want to accept that what they have done was considered a crime, but they would most likely continue to do so by having harsh punishments and disregarding basic human rights.
[1] Annyssa Bellal, Gilles Giacca, and Stuart Casey-Maslen, ‘International law and armed non-state actors in Afghanistan’ (March 2011) 93 International Review of the Red Cross 47
[2]. International Criminal Court office of the prosecutor, ‘Situation in Afghanistan, Summary of the Prosecutor’s Request for authorisation of an investigation pursuant to article 15’(20 November 2017), para 2
[3] Council on foreign Relation, ‘The U.S. War in Afghanistan’ <https://www.cfr.org/timeline/us-war-afghanistan#e92569> accessed 22 March 2022
[4]. International Criminal Court office of the prosecutor, ‘Situation in Afghanistan, Summary of the Prosecutor’s Request for authorisation of an investigation pursuant to article 15’( 20 November 2017), para 18
[5] Ibid, paras 14-19
[6] UNGA, ‘Rome Statute of the International Criminal Court’, ISBN No. 92-9227-227-6 (17 July 1998), Art. 17.
[7] Afghanistan, ‘ICC Judges reject opening of an investigation regarding the Afghanistan situation’ <https://www.coalitionfortheicc.org/country/afghanistan> accessed 21 March 2022.
[8]. Andrew Hilland and Catherine Gilfedder, ‘The International Criminal Court and Afghanistan’, (Just SecuritySeptember 3, 2021) <https://www.justsecurity.org/78080/the-international-criminal-court-and-afghanistan/> accessed 22 March 2022
[9] Situation in The Islamic Republic of Afghanistan (Decision) ICC-02/17 (12 April 2019), 74.
[10] UNGA, ‘Rome Statute of the International Criminal Court’, ISBN No. 92-9227-227-6 (17 July 1998), Art. 8.
[11] Andrea Bianchi, ‘Terrorism and Armed Conflict/ Insights from a Law & Literature Perspective’ (2011) 24 Leiden Journal of International Law, 11.
[12] Hamdan v Rumsfeld, 126 S Ct 2749, 548 US 557 (2006).
[13] Prosecutor v. Dusko Tadić aka “Dule” (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1, International Criminal Tribunal for the former Yugoslavia (ICTY), 2 October 1995, 70.
[14] International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609.
[15] International Review of the Red Cross, ‘International Law and armed non-state actors in Afghanistan’ (2011) <https://www.icrc.org/data/rx/en/assets/files/review/2011/irrc-881-bellal-giacca-casey-maslen.pdf> accessed 2 April 2022.
[16] Ibid.
[17]. Ibid.
[18] Situation in The Islamic Republic of Afghanistan (Decision) ICC-02/17 (12 April 2019), 65.
[19] UNGA, ‘Rome Statute of the International Criminal Court’, ISBN No. 92-9227-227-6 (17 July 1998), Art. 8(2)(c)(e).
[20] International Criminal Court office of the prosecutor, ‘Situation in Afghanistan, Summary of the Prosecutor’s Request for authorisation of an investigation pursuant to article 15’( 20 November 2017), para 21
[21] Ibid.
[22] UNGA, ‘Rome Statute of the International Criminal Court’, ISBN No. 92-9227-227-6 (17 July 1998), Art. 7.
[23] William A. Shabas, ‘Punishment of Non-State Actors in Non-International Armed Conflict’ (2002) 26 Fordham International Law Journal 926.
[24] Ibid.
[25] Prosecutor v. Dusko Tadić aka “Dule” (Opinion and Judgement), IT-94-1, International Criminal Tribunal for the former Yugoslavia (ICTY), 7 May 1997, 654.
[26] Situation in The Islamic Republic of Afghanistan (Decision) ICC-02/17 (12 April 2019), 20.
[27] International Criminal Court office of the prosecutor, ‘Situation in Afghanistan, Summary of the Prosecutor’s Request for authorisation of an investigation pursuant to article 15’( 20 November 2017), para 20.
Bibliography
Afghanistan, ‘ICC Judges reject opening of an investigation regarding the Afghanistan situation’ <https://www.coalitionfortheicc.org/country/afghanistan> accessed 21 March 21 2022.
Bellal A, Giacca G, and Casey-Maslen S, ‘International law and armed non-state actors in Afghanistan’ (March 2011) 93 International Review of the Red Cross.
Bianchi A, ‘Terrorism and Armed Conflict/ Insights from a Law & Literature Perspective’ (2011) 24 Leiden Journal of International Law, 11.
Council on foreign Relation, ‘The U.S. War in Afghanistan’ <https://www.cfr.org/timeline/us-war-afghanistan#e92569> accessed 22 March 2022.
Hamdan v Rumsfeld, 126 S Ct 2749, 548 US 557 (2006).
Hilland A and Gilfedder C, ‘The International Criminal Court and Afghanistan’, (Just SecuritySeptember 3, 2021) <https://www.justsecurity.org/78080/the-international-criminal-court-and-afghanistan/> accessed 22 March 2022.
International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609.
International Criminal Court office of the prosecutor, ‘Situation in Afghanistan, Summary of the Prosecutor’s Request for authorisation of an investigation pursuant to article 15’(20 November 2017).
International Review of the Red Cross, ‘International Law and armed non-state actors in Afghanistan’ (2011) <https://www.icrc.org/data/rx/en/assets/files/review/2011/irrc-881-bellal-giacca-casey-maslen.pdf> accessed 20 March 2022.
Prosecutor v. Dusko Tadić aka “Dule” (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1, International Criminal Tribunal for the former Yugoslavia (ICTY), 2 October 1995, 70.
Situation in The Islamic Republic of Afghanistan (Decision) ICC-02/17 (12 April 2019).
UNGA, ‘Rome Statute of the International Criminal Court’, ISBN No. 92-9227-227-6 (17 July 1998).
Shabas W, ‘Punishment of Non-State Actors in Non-International Armed Conflict’ (2002) 26 Fordham International Law Journal.
Authors
Mahssan Afzali, Team Lead & Coordinator, RCIL & HR (mahssan.afzali@gmail.com)
Ghina Al Khatib, Research Assistant, RCIL & HR (ghina.a.alkhatib@gmail.com)
Aamna Hasan, Research Assistant, RCIL & HR (hashmi.aamna@yahoo.com)