From December 4-6, 2019 the International Criminal Court organized a series of hearings on alleged war crimes in Afghanistan. In April 2019, the pre-Trial Chamber II of the court unprecedentedly denied the request of the court’s prosecutor for authorising an investigation. The three-day hearing provided not only the Office of the Prosecutor (OTP) and the victims’ representatives, but also the government of Afghanistan the opportunity to lobby against the ICC’s decision on investigation and prosecution of war crimes in the country. This report provides an overview of the current status of the case and the prospects of future developments.
On 12 April 2019, the pre-Trial Chamber II of the court unprecedentedly denied the request of the court’s prosecutor for authorising an investigation into alleged war crimes in Afghanistan based on an interpretation of article 15 of the Rome Statute. The Chamber reasoned that an investigation “would not have the interest of Justice”  and the court can use its resources in other feasible cases. Nevertheless, the Office of the Prosecutor (OTP) and a number of victims’ representatives protested against the Court’s verdict and submitted their petitions for leave to appeal this decision. Having taken into account the request of the Office of the Prosecutor and the representatives of the victims, the Appeal Chamber planned a hearing in order to consider the arguments against the decision of the Pre-Trial Chamber II.
From December 4-6, 2019, at the same time as the eighteenth session of the Assembly of the States Parties (ASP) to the Rome Statute, the International Criminal Court organized a series of hearings in the court chamber. The three-day hearing provided not only the OTP and the victims’ representatives, but also the government of Afghanistan the opportunity to lobby against the ICC’s decision on investigation and prosecution of war crimes in the country. This report provides an overview of the current status of the case and the prospects of future developments.
Judicial decision of Pre-Trial Chamber II
Afghanistan experiences never-ending circles of violence since 1979.Fatou Bensouda, the Prosecutor of ICC, highlighted in her request for authorization of an investigation, the parties to the armed conflicts have killed more than 26.500 civilians between 2009 and November 2017. This figure does not cover the number of civilian casualties, which has dramatically increased in the two years since, and as UNAMA reported in December 2019, “civilian causalities surpassed 100.000 in the past ten years”. Moreover, the Rome Statute defines rape and sexual violence in the context of war or civil unrest as crimes against humanity. In the context of Afghanistan, owing to a lack of documentation, most gender based and sexual crimes are rarely reported and prosecuted, leading to a pervasive culture of denial.
With the ratification of the Rome statute, Afghanistan became a party to it in May 1, 2003. Nevertheless, ICC accomplished ten years of preliminary examination on the situation of Afghanistan during 2007-2017. During this period, the war intensified and the alleged crimes against humanity increased, but the scope of addressing such crimes inside the country were always very limited.
The Afghan government recently reformed the Penal Code and codified the crimes against humanity and war crimes as part of this new law. Nevertheless, the government lacks sufficient expertise to deal with such crimes. More importantly, a great part of the country is controlled by the Taliban, which provides safe havens for alleged perpetrators. The government of Afghanistan gazetted a law on 3 December 2008, which is known as “amnesty law” of the criminals but officially, it is titled as National Reconciliation, General Amnesty, and National Stability Law. Forbidding prosecution of the war criminals, the law provides:
“Hostile parties who were involved in a way or another in hostilities …shall be included in the reconciliation and general amnesty program… and enjoy all their legal rights and shall not be legally and judicially prosecuted. …Those individuals and groups who … cease enmity … shall enjoy the benefits of this resolution.”
Practically, this means that there would be no official political willingness for dealing with past war crimes while the law perceives the legacy of atrocities as a past matter. It requires that,
“All political factions and hostile parties who were involved in a way or another in hostilities […] shall be included in the reconciliation and general amnesty program for the purpose of reconciliation”.
Moreover, persistent administrative corruption in addition to old and weak infrastructure and structures hinder the rule of law in the country. The survey of World Justice Project, which monitors the rule of law globally, ranked Afghanistan in its report for 2019 in the position of 123 out of 126, the lowest among the low-income countries and the 6th among South Asian states. Therefore, the judiciary of Afghanistan must handle several issues before it can initiate any investigation and prosecution of the war criminals in a volatile political situation. Under such circumstances, the Afghan judiciary system is unable to deal with increasing war crimes during intensified atrocities.
In November 2017, ICC’s Prosecutor, seeking authorization for an investigation, submitted a 200-page request to the Pre-Trail Chamber II of the court. Taking into account the facts on the ground, this means lack of willingness and lack of capacity of the state party’s national judicial institutions to investigate war crimes, OTP argued in its request that the ICC’s investigation would “serve the interest of justice” in Afghanistan. OTP underlined the fact that “the limited prospects for accountability at the national level” and continuation of war crimes and crimes against humanity are seriously “in favor of an investigation.”
According to the official demands of the Prosecutor, the alleged crimes are categorized into three types:
- Alleged Crimes by the Taliban and other armed groups such as numerous murders of civilians through suicide bombing, explosion of public places (schools, mosques, hospitals, etc.) and targeting of civilian servants, teachers, journalists and female staff of governmental and non-governmental organizations and arbitrary imprisonment of civilians.
- Alleged Crimes by the Afghan Forces including cases of torture, violating the victims’ dignity and acts of sexual violence.
- Alleged international Crimes committed by the US Forces and the CIA on the territory of a state party where according to the OTP “either no national investigation or prosecution have been conducted or are ongoing” against the alleged perpetrators. The court labelled some victims of this category under the title of “The Cross-border Victims“
Meanwhile, as part of the judicial procedure, the Victims Participation and Reparation Section (VPRS) of the court organized a process of collecting victim’s representations. The victims’ participation process was planned for a short time and did not consider the realities and requirements of an effective outreach on the ground, where the lawyers’ institutions have basic information about the ICC’s mandate and judicial process and a great majority of the victims are illiterate. The ICC’s Registry is tasked with planning and implementing an outreach program to ensure that “affected communities in situations subject to investigation or proceedings” understand and trace the different phases of the court’s activities regarding the case. In reality, the Registry has never established a field office in Afghanistan nor has it implemented a plan to reach the victims and other concerned groups via other possible options. Consequently, such an approach underestimated the victim’s rights and role during the process and the outcomes could not reflect the great part of the victims’ voice.
Some Afghan civil society and human rights organizations put efforts to fill this gap. In spite of this, they could not engage and mobilize all victims during this process due to the absence of adequate expertise and resource scarcity. VPRS’s staff also met with some representatives of the Afghan Diaspora in a few European countries and disseminated the Dari and Pashto versions of the relevant formats. Finally, the Registry section of the court received 794 representations in Dari, Pashto, Arabic, English and German. Of these, until 9 February 2018, the chamber received 699 representations on behalf of individuals, families, villages and millions who were victimized collectively. Nearly all of these representations demanded an investigation and justice.
After the OTP submitted their request, the court was faced with strong reactions and threats of US sanctions, which anticipated that the ICC “will die on its own”. Later on, the USA annulled the court prosecutor’s visa for pursuing war crimes. In the midst of such a situation, the OTP did not receive an answer from the Pre-Trial Chamber for 420 days. Finally, on 12 April 2019, ICC Pre-Trial Chamber II unprecedentedly refused to authorize an investigation into alleged war crimes and crimes against humanity committed in Afghanistan. The judges cited that an investigation into the situation in Afghanistan at this stage “would not serve the interests of justice” because the state party will unlikely not cooperate. The “complexity and volatility of the political climate” in addition to a lack of sufficient resources are mentioned as other grounds for that decision. The judges stressed that resources must be allocated for the cases that will have “more realistic prospects to lead to trials and thus effectively foster the interests of justice”.
This decision was rejected by sending several appeals to the court including one on behalf of the representatives of 82 Afghan victims. Afghanistan Transitional Justice Coordination Group, Armanshahr/ Open ASIA, International Federation for Human Rights and 6 other international organizations submitted an amicus brief to the court. Emphasizing the importance of victims’ right to appeal, most of these amicus briefs focused on the incorrect interpretation of the Pre-Trial Chamber II about the provisions of article 15 of the Rome Statute on the “interests of justice”. They stressed that “taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice”. Further, these appeals stood that the Pre-Trial Chamber misused its authority by limiting the scope of investigation and overlooking the victims’ interests and hope for justice.
The Appeal Process
After the Appeals Chamber issued a decision on the Prosecutor and the victims’ representatives to submit their appeals, several submissions were filed. The court then ordered a hearing process from 4-6 December 2019 aiming to scrutinize the decision of the Pre-Trial Chamber II in light of the amicus’ observations, appeals of the Prosecutor and the representatives of the victims. The order also provided room for observations by experts of criminal procedure, human rights and interested states. After due time, no state observation was filed and the initial agenda of the hearing did not include observations on behalf of the representatives of the government of Afghanistan or any other State Party. However, various prominent academics, human rights organisations as well as former prosecutors (including Benjamin Ferencz) filed submissions.
Jay Sekulow, one of President Trump’s personal lawyers, has previously submitted an amicus. He also addressed the Chamber in his own capacity during the hearing, and stressed that ICC has no jurisdiction to investigate the alleged crimes of US citizens in the context of the state party. From his point of view, the bilateral security agreement between US and Afghanistan rules that US authorities shall prosecute alleged crimes committed by US citizens. Afghanistan cannot initiate a national investigation nor shall ICC investigate such international crimes.
On 26 November 2019, the Appeal Chamber decided to extend the time for receiving the state’s observations based on the request of the Afghanistan government. Based on its observation, Afghan government submits that the Appeal Chamber should dismiss the appeals for revoking the decision of the Pre-Trial Chamber II and „no international investigation should be authorized at this stage” and “alternatively, the matter should be remitted to the Pre-Trial Chamber for renewed consideration … in light of … materials of Afghanistan". Both, the Ambassador of Afghanistan in the Netherlands and his Counsellor highlighted the importance of a peace process during their observations and reaffirmed several times that the ICC’s intervention “at this stage” can jeopardize this process. This stand of the Afghan government is in line with the provision of the “amnesty law”, which perceives investigation of the legacy of war crimes an obstacle against reconciliation. In contrast to this argument, they claimed ironically about feasibility of a national initiative for prosecution of the alleged crimes as “an effective investigation currently lies with Afghanistan’s national investigation”.
Victims’ representatives and the Transitional Justice Coordination Group (TJCG), composed of 26 Afghan human rights organizations, “strongly” rejected the Afghan Government’s position. In its statement, the TJCG called on all “State Parties to fulfil their state cooperation obligations and to ensure that an investigation occurs under the current circumstances in Afghanistan”. Furthermore, they argued,
“The Afghan Government says it can effectively arrest and prosecute war crimes in Afghanistan. But it has not done so for the last 40 years, and the changes it points to do not go to the heart of the matter… The ICC is the last resort for Afghan victims; we (Afghan people and victims) ask that we not be abandoned”.
During the hearing, representatives of victims and the prosecutor demanded the Appeal Chamber to reassess the decision of the Pre-Trial Chamber II and facilitate beginning of the investigation in the situation of the state party. Most of their arguments focused on the ICC’s mandate to:
- bring justice and accountability for the victims;
- address the interests and expectation of the concerned people;
- take into account the feasibility of an investigation and prosecution of the war crime in the context of the state party;
- consider the unwillingness and incapability of the state party to initiate a national process;
- revise the incorrect interpretation of the Pre-Trial Chamber II of “interest of justice” and
- pay attention to the negative consequences of the decision to not allow an investigation.
Landscapes of future developments
Having accomplished a ten-year pre-examination on the situation of Afghanistan, the Prosecutor’s scrutiny of “interest of justice” assures that an investigation is necessary and feasible. In all the previous cases throughout the Court’s history, it was presumed that the investigation would serve the interests of justice unless it cannot be applicable for any reason. Contrary to the prosecutor’s argument, the Pre-Trial Chamber II’s decision puts forward another interpretation for the Rome Statutes and its term, “interest of justice” and based on their understanding, they refrained an approval. Currently the Appeal Chamber is standing in such juncture and their verdict will determine what this term would mean correctly in the context of the state party and if further proceedings is necessary and practicable or the case shall be closed. This would be the final Judgement and according to the court’s rule, there shall be no more appeal.
Regarding further development, one can see that determinant factors of possible scenarios are the prosecutor’s request appeals and interests of the victims, high political tensions and unimaginable pressure by the US. Furthermore, non-cooperative stands of state party, security and the possibility of political settlements in Afghanistan, pervasive and long lasting conflicts make the testimony of the witnesses and documents problematic. Additionally, the Appeal Chamber can prolong the current process by requesting further scrutiny and examination of the political development in the future.
People and victims in Afghanistan are following this process with great concern and as a local journalist underlined, this decision would matter for the victims as ending the culture of impunity by dealing with the past in favour of “interests of justice or sacrifice justice”. Indeed the stroke of the five Appeal Judges’ pens can realize the desire of the victims’ cries for accountability and justice in a country, which is in its A41st year of growing atrocities with a larger scale of violations and where peace is not yet on the horizon.
 The court argued in paragraph 96 of its decision that “In summary, the Chamber believes that, notwithstanding the fact all the relevant requirements are met as regards both jurisdiction and admissibility, the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited. Accordingly, it is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favouring the investigation, or otherwise positively contributing to it. It is worth recalling that only victims of specific cases brought before the Court could ever have the opportunity of playing a meaningful role as participants in the relevant proceedings. In the absence of any such cases, this meaningful role will never materialise in spite of the investigation having been authorised; victims' expectations will not go beyond little more than aspirations. This, far from honouring the victims' wishes and aspiration that justice be done, would result in creating frustration and possibly hostility vis-a-vis the Court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve.” https://www.icc-cpi.int/CourtRecords/CR2019_02068.PDF
 The Registry argued during a meeting with the representatives of the Afghan civils society in The ICC on 03.12.2019 that the “Outreach” mandate could only be started only if the Pre-Trial Chamber approves the beginning of the investigation. Fadi Abdullah, spokesperson for the court, raised again this position in his interviews with an Afghan journalists. https://kabulnow.af/2019/12/icc-is-concerned-about-afghanistan-says-courts-spokesperson/
 Other organizations are No Peace Without Justice, European Center for Constitutional and Human Rights, Human Rights Watch, The Center for Justice & Accountability, REDRESS, and the Women’s Initiatives for Gender Justice
 Afghanistan, as a state party to the Rome Statutes is legally obliged to cooperate with the Court. However, during the pre-examination process (2007-2017) the government of Afghanistan did not comply with their responsibilities. This is highlighted in the decision of the Pre-Trial Chamber II.