Horia Mosadiq, Executive Director of Conflict Analysis Network, highlights the damage caused to the ICC’s credibility by delays in initiating the Office of the Prosecutor’s investigation and the continued uncertainty as to whether it will proceed.
Afghanistan is one of the most delayed situations before the International Criminal Court (ICC). The Office of the Prosecutor (OTP) spent more than a decade conducting its preliminary examination before seeking authorisation to initiate an investigation. It took two and a half years, including an appeal against a controversial decision by the Pre-Trial Chamber rejecting the Prosecutor’s request, before the Appeals Chamber authorised the investigation in March 2020. Sixteen months later, it is still uncertain whether the investigation will proceed following a request by the Afghan government for the OTP to defer the investigation. The request is being considered by the OTP in a slow and non-transparent manner. Meanwhile a humanitarian crisis has unfolded in Afghanistan.
Political Interference and Delays Undermine Justice
There are several reasons for many of the delays that have occurred in conducting an ICC investigation in Afghanistan, but the most obvious reason has been the presence of the international forces under the command of NATO and particularly U.S. forces. Since Afghanistan became a member of the ICC in 2003, war crimes and other serious crimes have been committed by all parties to the conflict, including by U.S. and NATO forces.
The United States, particularly under the Trump administration, has mounted pressure against the ICC to not investigate these crimes and has imposed several actions, including sanctions against Court officials.
Despite ICC Prosecutor Fatou Bensouda’s decision to request authorisation to open an investigation in November 2017, the Pre-Trial Chamber rejected the request, finding that it would not be in the interests of justice. The decision, which was widely criticized, questioned the feasibility of the proposed investigation, appearing to give weight to the impact of U.S. opposition on state cooperation.
While the ICC relies on the cooperation of states, including those whose nationals are under investigation, this must not prevent the Court from seeking other ways to conduct an investigation when cooperation is withheld.
Although the Pre-Trial Chamber’s decision was overturned by the ICC Appeals Chamber in March 2020 and the investigation was authorised, such decisions and delays have undermined the Court’s credibility in the eyes of millions of victims of war crimes across the world, particularly in Afghanistan.
Afghanistan’s Request to Defer the Investigation
Whether the ICC will play a role in ending impunity in Afghanistan remains uncertain.
Shortly after the ICC Appeals Chamber authorised the investigation, on 16 April 2020, the Afghan government requested the OTP to defer the investigations pursuant to Article 18 of the ICC Statute on the basis that it has investigated or is in the process of investigating crimes that could be examined by the ICC.
That process has so far lasted 15 months with little transparency about the content of the government’s request or outreach to victims and affected communities.
In May 2021, an Afghan government delegation met with ICC officials to convince the Court that the country is willing and able to investigate and prosecute war criminals. However, the realities of impunity on the ground do not support the government’s claims to the ICC.
Throughout the years, the Afghan government has clearly shown that it is neither able nor willing to investigate and prosecute war crimes. On the contrary, under pressure from the United States and other Western countries, it has released thousands of suspected and convicted war criminals pursuant to the peace agreement signed between the United States and the Taliban in February 2020. This evades all hope for national accountability for decades of war crimes and human rights violations committed by different parties in the country.
Following developments in Afghanistan over the past weekend, the Prosecutor made a welcome statement on 17 August reminding all parties to the hostilities that the OTP ‘will continue to monitor the Afghanistan situation and will act, as necessary, in accordance with its responsibilities under the Rome Statute’. Incredibly the OTP did not mention the Article 18 deferral request, nor when and how it will respond to it.
Due to the lack of evidence that national authorities are either willing or capable of conducting national investigations into alleged war crimes and the impact of the current crisis on any efforts to address impunity domestically, the ICC must open an investigation without further delay.
Afghanistan Needs a Strengthened and Independent ICC – Not Further Delays
While events this weekend have focussed global attention on the devastating humanitarian crisis in Afghanistan, the security situation has deteriorated and insurgency has taken a toll on the country over the last two years. The release of thousands of Taliban prisoners had led to a significant increase in targeted attacks against journalists, media workers, human rights defenders, medical doctors, judges, lawyers and other civilians in 2020 and 2021. Yet there is no justice for the victims. Meanwhile, hundreds of thousands of civilians have already been displaced or forced to leave their homes; public properties were deliberately attacked and destroyed; and torture, arbitrary and extra-judicial killings increased, mostly committed by armed insurgent groups.
The ICC has a duty to deliver justice for the victims of international crimes independently, impartially and effectively. To enhance its effectiveness on the ground, the Court must:
- Maintain its independence by word and action, including from States Parties to the Rome Statute that fund the Court, and do everything to build the trust of war victims and their families in the Court.
- Establish time limits for ongoing and future preliminary examinations. There have been vast discrepancies between situations that seem to reflect political pressures rather than the interests of justice. In Libya, for example, with support from the United States, investigations were opened shortly after being referred by the UN Security Council. This stands in contrast to the long delays in situations, like Afghanistan, where the United States has pressured the ICC not to investigate.
- Ensure there are sufficient resources for outreach and information dissemination to the people on the ground during preliminary examinations and investigations. The ICC must have a thorough strategy on raising awareness, information sharing by using local media and other means of public outreach.
Elections of ICC judges must ensure that those elected have the highest level of experience and expertise in dealing with the international and war crimes and the willingness to deliver justice in the face of political pressure from states.
Hibernating Investigations Would Undermine the ICC’s Credibility
The current ICC Review promises to deliver some of these important reforms. However, its recommendation to hibernate investigations on feasibility grounds is contrary to the Review’s aim of strengthening the performance of the Court. As the delays and uncertainty regarding the Afghanistan investigation demonstrate, delays can open the ICC to accusations of political interference, send confusing messages to victims and affected communities, and erode trust in the Court.
The ICC is the last resort for delivering justice to many victims of war crimes across the world. It has the responsibility not only to deliver justice, but to maintain the faith of the people, particularly victims, that it will independently fulfil its mandate.