Finding Should Trigger Full Analysis, Fact-Finding Mission
December 1, 2013
The ICC prosecutor’s finding that war crimes and crimes against humanity are still being committed in Afghanistan should kick-start a full inquiry to spur justice in the country.
Richard Dicker, International Justice director

The prosecutor’s office of the International Criminal Court (ICC) should expedite its preliminary inquiry on grave international crimes committed in Afghanistan, Human Rights Watch said today. In its November 2013 Report on Preliminary Examination Activities, the ICC prosecutor’s office found that “[W]ar crimes and crimes against humanity were and continue to be committed in Afghanistan,” and that it would examine whether the government was taking sufficient action to investigate and prosecute these crimes.

“The ICC prosecutor’s finding that war crimes and crimes against humanity are still being committed in Afghanistan should kick-start a full inquiry to spur justice in the country,” said Richard Dicker, international justice director at Human Rights Watch. “This would signal to human rights abusers in Afghanistan that they can’t evade justice forever.”

Afghanistan has been a “situation under analysis” since 2007, in which the prosecutor considers whether to open formal investigations into alleged crimes in violation of international law.

The prosecutor’s office should expedite a fact-finding mission to Afghanistan to collect testimony and improve its information exchange with Afghan organizations, government bodies and, relevant international entities, Human Rights Watch said.

The ICC prosecutor’s inquiry has continued for six years, longer than any other publicly pending ICC inquiry in such an early phase of examination. Human Rights Watch has documented numerous serious abuses during this period.

Afghanistan joined the ICC in 2003. An ICC commitment to reinvigorate its pursuit of possible prosecutions in Afghanistan could promote broader accountability in the country, Human Rights Watch said. As international military forces prepare for the withdrawal of combat forces from Afghanistan by the end of 2014, the government and foreign donors have given no serious consideration to the persistent problem of impunity for human rights abuses.

Research by the official Afghanistan Independent Human Rights Commission and independent opinion polls consistently shows that most Afghans support accountability for past decades of human rights violations and war crimes.

Under the Rome Statute of the ICC, a case is only admissible before the court if the government has been, “unwilling or unable genuinely to carry out the investigation or prosecution.”

Afghan government efforts at accountability, especially concerning its own forces, have achieved little, Human Rights Watch said. The government’s Action Plan for Peace, Reconciliation and Justice, issued in 2005, has not been carried out. President Hamid Karzai, with the backing of the United States and other governments, suppressed the release of the sole major effort to follow the Action Plan, the human rights commission’s 800-page report mapping serious abuses from 1978 to 2001.

In 2007, a coalition of powerful warlords and their supporters in parliament passed the National Stability and Reconciliation Law, which granted effective amnesty to people responsible for large-scale human rights abuses committed before 2001. The upcoming withdrawal of international combat forces from Afghanistan heralds a broader disengagement by the international community that may dissipate the little remaining international pressure to promote accountability for serious abuses, Human Rights Watch said.

The urgent need for accountability is evident in the campaign ahead of the presidential election in April 2014. Several candidates for president and vice president have been implicated in serious rights abuses. Afghanistan’s constitutional prohibition on convicted criminals running for president is of little effect when no major commanders have been convicted for any of the massive abuses committed in the country during the past four decades.

Support for the ICC’s prosecutor’s office analysis by the Afghan government, and countries with international troops in Afghanistan, is crucial for moving the process forward, Human Rights Watch said. However, as flagged in the prosecutor’s November 2012 report, this cooperation has not always been forthcoming.

“The clock is ticking for the Karzai administration to put accountability on the national agenda,” Dicker said. “The government and its international supporters should endorse the ICC prosecutor’s efforts to keep justice on the table.”