Image Source: OnuItalia ‘Italy and other 70 states reaffirm support for ICC, a Court of last resort’ (2 November 2020) <https://www.onuitalia.com/2020/11/02/italy-and-other-70-states-reaffirm-support-for-icc-a-court-of-last-resort/>
The Prosecutor’s decision to focus on Taliban and IS-K alleged crimes did not come solely because of limited resources. Rather, by everlasting pressure exerted by the US to get a jail-free ticket out of the crimes committed by the US armed forces and CIA members in Afghanistan and other countries.
The history of events in Afghanistan has been disturbing for all as they have seen the usurping of Human Rights and justice. The Taliban’s takeover of the country, resulting from the rapid withdrawal of the US and allied forces from the territory,[1] has now given rise to concerns about the safety and rights of women, girls, ethnic minorities, and allies of the former government.[2] Thus, it is time for the International Criminal Court (ICC) to continue its investigation and prosecute perpetrators for the war crimes that were and are still being committed. The investigation which started at the ICC focuses on the alleged war crimes and crimes against humanity which have been committed in Afghan territory since the 1st of May 2003.[3]
After receiving communication of alleged core international crimes committed in Afghanistan, the ICC Office of the Prosecutor (OTP) made public its preliminary examination in 2007. In order to make a determination for a formal investigation, the OTP needed to assess different aspects of the case, such as “jurisdiction (temporal, territorial or personal, and subject matter); admissibility (complementarity and gravity); and the interests of justice”.[4]
Ten years later, in 2017, the Office of the Prosecutor completed its preliminary examination. Fatou Bensouda, the then prosecutor of the ICC, asked for the authorisation of the Pre-Trial Chamber III to open an investigation into alleged war crimes and crimes against humanity in Afghanistan,[5] stating that there was reasonable suspicion that such crimes were being committed by the Taliban and the US forces. Nevertheless, in 2019, the Pre-trial Chamber II rejected the Prosecutor’s request and refrained from authorising the investigation,[6] arguing that it was not “in the interests of justice” as a great amount of time had passed since the start of the preliminary examinations in 2006 and that the involved state parties had not been cooperative. The Court, however, did acknowledge that there was sufficient evidence to believe that crimes under its jurisdiction had happened in Afghanistan and found the cases to be admissible in terms of gravity threshold[7] and considered the lack of national criminal proceedings against those responsible.[8] In response to the Court’s decision, the Prosecutor requested leave to appeal, which was granted by Pre-Trial Chamber II in 2019.”[9] As a result, in 2020, the Appeals chamber of The International Criminal Court authorised the Prosecutor to start an investigation into “crimes allegedly committed on the territory of Afghanistan since May 1, 2003, and other alleged crimes that have a nexus to the armed conflict, are sufficiently linked to the situation in Afghanistan, and were committed on the territory of other States Parties to the Rome Statute since July 1, 2002”.[10]
However, shortly after the decision of the Appeals chamber, the progress was once again suspended when, in March 2020, the Government of Afghanistan asked the Prosecutor to defer the investigation in accordance with article 18(2) of the Rome Statute, which specifies that a state must inform the ICC when an investigation of nationals has already started in the domestic jurisdiction.[11] According to the principle of complementarity, indeed, the ICC prosecutor can exercise its jurisdiction only whether the national authority is unwilling or unable to do so.[12] Nevertheless, there was little reason to believe that the Afghan government had pursued effective investigations and prosecutions on the matter. It is worth indeed noticing that, according to a Human Rights Watch report, out of 151 cases of investigation in Afghanistan, only 28 reached courts.[13]
In a recent statement of 27 September 2021, the Prosecutor of the ICC, Karim A. A. Khan QC, announced that the ICC is preparing to resume the investigations in the situation of Afghanistan but with a focus on alleged crimes allegedly committed by the Taliban and the IS-K. Karim Khan decided to omit the US from the investigation in Afghanistan, stating that the “worst crimes” were committed by the Taliban and the ISIL(ISIS)”, a decision which was highly criticised by rights groups.[14] The reasoning behind this was that the gravity and the “continuing nature” of the crimes committed by the Taliban and the IS-K require proper focus and resources. In other words, the Prosecutor claimed that the “limited resources” available for his Office constrain it to dedicate its effort in building credible cases.[15] However, is the issue of “limited resources” the only reason behind this decision? Available evidence might lead to different conclusions.
The ICC might have succumbed to the pressure exerted by the US to halt the investigation of US crimes. Efforts to secure the US from ICC prosecution have been present since the ICC started operating. The US sought to protect its personnel from international investigations by enacting the American Service-Members’ Protection Act in 2002. This Act protects US military personnel and other elected or governmental officials from being prosecuted by any international Court to which the US is not a party. The US also secured bilateral agreements to restrict other countries from collaborating with the ICC.[16] Yet, it further intensified its pressure in order to derail the investigations into the situation of Afghanistan. The US tried to use the principle of complementarity against the initiation of an investigation by the ICC. In 2018, former National Security Advisor John Bolton stated that since the “US judicial systems already hold American citizens to the highest legal and ethical standards”, the ICC was not needed.[17] However, Elizabeth Beavers argued that these investigations are only limited to low-level officers responsible for torture. Thus, by failing to conduct investigations against senior officers, it can be argued that “the United States has not met the complementarity standard of the International Criminal Court.”[18] Katherine Gallagher, a representative of the victims of US torture and senior staff attorney at the Center for Constitutional Rights, stated that the denial of the Pre-Trial Chamber to open an investigation in 2019 is rooted in the “the political pressure that the Trump administration has put on the court.”[19]
The US action did not stop there. On 23 March 2020, the US Secretary of State Mike Pompeo visited Kabul “to revive the stalled intra-Afghan peace process”.[20] Three days after his visit, the Afghan government, eagerly needing the US support, submitted a petition to defer the investigation of the ICC and allowed it to happen on a national level. It is worth noting that the Chair of Afghanistan’s Independent Human Rights Commission, Shaharzad Akbar, kept advocating to defer the investigation to a national level until the total takeover by the Taliban.[21] Knowing that the Afghan state does not have the ability to conduct national prosecutions, this deferral meant a pause in the investigation of crimes committed by the US.[22] Yet, the triumph of US pressure came after the representatives of victims and prosecutors submitted an appeal against the denial decision on 5 March 2020.[23] The Trump administration responded by enacting Executive Order 13928, which exerted “economic sanctions and travel restrictions on the ICC’s Prosecutor and her senior aide” on 11 June 2020.[24] Only after ensuring that there would be no probe on the crimes committed by the US, the Biden administration lifted the sanctions imposed by the Executive Order 13928 on 1 April 2021.[25]
Therefore, based on the aforementioned evidence, it is safe to state that the Prosecutor’s decision to focus on Taliban and IS-K alleged crimes did not come solely because of limited resources. Rather, it came by the everlasting pressure exerted by the US to get a jail-free ticket out of the crimes committed by the US armed forces and CIA members in Afghanistan and other countries.
Now more than ever, the need for an investigation is considerably felt. The takeover of the Taliban has made it apparent that they are not in a position to administer justice in relation to historic war crimes and crimes against humanity committed in the country, given that a great number of such crimes have been committed by themselves.[26] After decades of war in Afghanistan which has always been accompanied by horrific killings and events, the ICC is the best hope for accountability and retribution, and to uphold the international rule of law. The role of the ICC is not only important as a national matter but also creates a precedent for future cases. To prevent future incidents akin to what happened in Afghanistan, international bodies – including the ICC – must strengthen their power and legitimacy. Only then we could expect to see those who commit such crimes held accountable. For this reason, the ICC should push investigations and continue to look into the situation. Article 27 of the Rome statute expresses that the ICC provisions apply to all without distinction, including officials. It also states that even if officials have special immunities or privileges under national or international law, the court can still exercise its jurisdiction over them. This means that nothing prevents the International Criminal Court from prosecuting the government officials of the Islamic Emirate of Afghanistan and the US army.
[1] Nancy A Youssef, Gordon Lubold, ‘Last U.S. Troops Leave Afghanistan After Nearly 20 Years’ (The Wall Street Journal, 30 August 2021) <https://www.wsj.com/articles/last-u-s-troops-leave-afghanistan-after-nearly-20-years-11630355853> accessed, 27 April 2022.
[2] Andrew Hiland, Catherine Gilfedder, ‘The International Criminal Court and Afghanistan’ (Just Security, 3 September 2021) <https://www.justsecurity.org/78080/the-international-criminal-court-and-afghanistan> accessed, 1 April 2022.
[3] Ibid.
[4] International Criminal Court Project, ‘Afghanistan’<https://www.aba-icc.org/country/afghanistan/> (10 February 2003) accessed, 7 April 2022.
[5] Ibid.
[6] Aljazeera ‘ICC Prosecutor defends dropping US from Afghan war crime probe’ (6 December 2021) <https://www.aljazeera.com/news/2021/12/6/icc-prosecutor-defends-dropping-us-from-afghan-investigation> accessed, 1 April 2022.
[7] The Appeals Chamber set out relevant criteria for the assessment of the gravity requirement which was holistic and to be performed on a case by case basis (para. 94). These included:
• quantitative factors (particularly the number of victims) are important but are not determinative;
• qualitative criteria (some ‘aggravating or qualitative’ factors such as the nature, scale, manner of commission of the crimes including human rights violated as a result, the impact on victims, the role and degree of the accused’s participation and discriminatory motives);
• some sentencing factors in rules 145(1)(c) and 145(2)(b) (including the extent of the damage caused, the nature of the conduct, the means employed, the accused’s degree of participation, the degree of intent, the circumstances of manner, time and location, the defencelessness of the victims, cruelty of the conduct, multiple victims and any discriminatory motive (paras. 89-92)). This was because article 78(1) requires the Court to take into account ‘the gravity of the crime’ in sentencing. The sentencing factors provided useful guidelines for evaluating gravity under article 17(1)(d) and ensured a consistency in the interpretation of the concept of gravity within the Statute (para. 93).
[8] International Criminal Court Project, ‘Afghanistan’ (n 4).
[9] Ibid.
[10] Ibid.
[11] Hiland, Gilfedder, ‘The International Criminal Court and Afghanistan’ (n 2).
[12] Rome Statute of the International Criminal Court (17 July 1998), article 17.
[13] Human Rights Watch, ‘ICC investigation Vital for Justice in Afghanistan’ (11June 2020) <https://www.hrw.org/news/2020/06/11/icc-investigation-vital-justice-afghanistan>accessed, 1 April 2022.
[14] Aljazeera ‘ICC Prosecutor defends dropping US from Afghan war crime probe’ (n 6).
[15] Ibid.
[16] Elizabeth Beavers, ‘Where Do They Go for Justice? The United States – International Criminal Court and Crimes Against Humanity in Afghanistan’ (2021) 52 California Western International Law Journal 85-114.
[17] Ibid, 95.
[18] Ibid, 100.
[19] The Intercept, ‘How the U.S. Derailed an Effort to Prosecute its Crimes in Afghanistan’ (5 October 2021) <https://theintercept.com/2021/10/05/afghanistan-icc-war-crimes/> accessed, 1 April 2022.
[20] Ibid.
[21] Situation in The Islamic Republic of Afghanistan (Request) ICC-02/17 (26 March 2020).
[22] The Intercept, ‘How the U.S. Derailed an Effort to Prosecute its Crimes in Afghanistan’ (n 19).
[23] Situation in The Islamic Republic of Afghanistan (Decision) ICC-02/17 (5 March 2020).
[24] The White House, ‘Executive Order on the Termination of Emergency With Respect to the International Criminal Court’ (1 April 2021) <https://www.whitehouse.gov/briefing-room/presidential-actions/2021/04/01/executive-order-on-the-termination-of-emergency-with-respect-to-the-international-criminal-court/> accessed, 1 April 2022.
[25] The Intercept, ‘How the U.S. Derailed an Effort to Prosecute its Crimes in Afghanistan’ (n 19).
[26] Aljazeera, ‘ICC Prosecutor defends dropping US from Afghan war crime probe’ (n 6).
Bibliography
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Authors
Mahssan Afzali, Coordinator (mahssan.afzali@gmail.com)
Ghina Al Khatib, Research Assistant (ghina.a.alkhatib@gmail.com)
Aamna Hasan, Research Assistant (hashmi.aamna@yahoo.com)