Afghan family leaves site of attack in Kabul, Afghanistan, December 22, 2016. © 2016 Reuters

 
On November 20, 2017, the prosecutor of the International Criminal Court (ICC), Fatou Bensouda, requested permission from the court’s judges to authorize an investigation into possible war crimes and crimes against humanity in Afghanistan since May 1, 2003. So far, the prosecutor wants to investigate crimes by Afghan government forces, anti-government groups such as the Taliban, and foreign forces – notably those allegedly committed by the US military and Central Intelligence Agency (CIA).

The prosecutor’s preliminary examination of the situation in Afghanistan became public in 2007, and, since then, the office has been gathering information to determine whether to seek a full investigation. Since the ICC is a court of last resort, part of its analysis includes whether national authorities are “unwilling or unable genuinely to carry out the investigation or prosecution.” If permission is granted, the prosecutor will be allowed to investigate crimes in the ICC’s jurisdiction – including war crimes and crimes against humanity – allegedly committed by all parties to the Afghanistan conflict.

Human Rights Watch has reported numerous violations of international humanitarian law and human rights law by Afghan government forces including summary executions, forced disappearances, and systematic torture by Afghan government forces, particularly the National Directorate of Security (NDS), the Afghan National Police, and the Afghan Local Police. Torture has included electric shock, severe beatings, drilling detainees’ heads, suspension for prolonged periods, and forced immersion in water. Human Rights Watch has also documented many abuses by the Taliban, which has carried out numerous suicide and other deliberate attacks on thousands of civilians including judges, legislators, community elders, and journalists, either through suicide attacks or explosive devices targeting vehicles or buildings used by these civilians. Human Rights Watch has found torture and ill-treatment of detainees by the US military and CIA since the US-led invasion of Afghanistan in late 2001.

The following questions and answers concern the prosecutor’s request to open an investigation and next steps.

  1. Has the ICC prosecutor opened an investigation into crimes in Afghanistan?
  2. What does the prosecutor want to investigate in Afghanistan?
  3. What is the significance of the ICC’s possible investigation in Afghanistan?
  4. But if the United States is not an ICC member country, how can the ICC prosecutor investigate allegations against US personnel implicated in abuses in Afghanistan?
  5. Wasn’t the ICC supposed to act earlier? Why did this take so long?
  6. Will the allegations the prosecutor has identified in her application form the basis for future prosecutions?
  7. What will the ICC judges consider in deciding whether to approve an investigation?
  8. Do member countries have to help the ICC?
  9. Will victims have a chance to weigh in with the judges?
  10. Is it significant that there could be another investigation outside of Africa?
  11. How will people in Afghanistan learn about the role of the ICC?

 

1. Has the ICC prosecutor opened an investigation into crimes in Afghanistan?

No. The prosecutor cannot open an investigation on her own. At this stage, the ICC prosecutor is seeking permission from the judges under article 15 of the Rome Statute, the court’s founding document, to investigate possible ICC crimes. 

2. What does the prosecutor want to investigate in Afghanistan?

The prosecutor’s application seeks authorization to investigate alleged crimes against humanity and war crimes committed by the Taliban and affiliated forces, Afghan National Security Forces (ANSF), and US armed forces and the CIA. The ICC has jurisdiction over grave international crimes by anyone in Afghanistan since May 1, 2003, when Afghanistan joined the Rome Statute, the ICC’s founding treaty. In addition to alleged crimes committed in Afghanistan, a limited number of crimes are alleged to have been committed in clandestine CIA detention facilities in Poland, Romania, and Lithuania, all parties to the Rome Statute (Poland and Romania since July 1, 2002, and Lithuania since August 1, 2003). According to the prosecutor, these alleged crimes “are sufficiently linked to and fall within the parameters of the present situation.”

3. What is the significance of the ICC’s possible investigation in Afghanistan?

For more than three decades, Afghanistan has been the theater of horrific abuses with those responsible operating under a near-total blanket of impunity. The prosecutor’s request to open an investigation means that victims of the worst crimes since May 2003 have a potential, if long-overdue, path to justice.

National justice efforts have been feeble at best. The Afghan government has sometimes initiated investigations, but these have lacked impartiality and independence and investigators often lack the capacity to carry out investigations. Of the dozens of cases of torture documented since 2011, only one has resulted in prosecution. There have been no prosecutions for the documented cases of summary execution and enforced disappearance. Furthermore, some government officials who have overseen serious abuses have remained in positions of power. The prosecutor’s application made a similar assessment, finding that no national investigations or prosecutions have been conducted or are ongoing against those who appear most responsible for alleged crimes committed by the Taliban or the ANSF.

The prosecutor’s application is also the first that would allow the ICC to address abuses committed by US forces and the CIA. This is especially relevant since many powerful countries – including the US – and their allies have been able to avoid the reach of the ICC by not joining the court. The UN Security Council has also been blocked from referring these cases. In one example, in May 2014 Russia and China vetoed a resolution to refer the situation in Syria to the ICC. The extent to which the prosecutor’s office probes crimes by US nationals could therefore signal that no one is outside of the law. 

4. But if the United States is not an ICC member country, how can the ICC prosecutor investigate allegations against US nationals implicated in abuses in Afghanistan?

The ICC has jurisdiction over war crimes, crimes against humanity, and genocide committed on the territory of Afghanistan, a state party, after May 1, 2003 – even crimes by nationals of non-states parties. 

Human Rights Watch and other organizations have documented US abuses against detainees in Afghanistan since the US-led invasion ousted the Taliban government in late 2001. In 2004, Human Rights Watch found compelling evidence of torture or cruel treatment by US personnel including severe beatings, dousing detainees with cold water and subjecting them to freezing temperatures, and forcing detainees to stay awake and to stand or kneel in painful positions for hours.

A 2012 report, Delivered into Enemy Hands, documented cases in which the CIA used torture in Afghanistan including severe beatings, days of extended sleep deprivation coupled with painful stress positions, confinement in small boxes, forced nudity, food and water deprivation, near suffocation using water, and exposure to severely cold temperatures, which in at least one case resulted in death. Many of these abuses were corroborated by the US Senate Intelligence Committee’s 2014 executive summary of its still classified report on the CIA’s detention and interrogation program. A 2015 Human Rights Watch report on CIA torture, “No More Excuses,” challenged US government claims that those responsible for CIA torture could not be prosecuted in US courts. And a 2016 report documented previously unreported CIA torture at the black site “Cobalt” and US military torture at Bagram airbase, both in Afghanistan.

The US investigation into CIA abuse closed without the Justice Department bringing any charges. As Human Rights Watch reported in “No More Excuses,” this investigation had many weaknesses – among other things, it appears to have looked into only the abuses that went beyond the interrogation methods secretly authorized by the Justice Department, while the authorization and use of those techniques should have been included. But no prosecutions were brought even on the cases that fell within this limited scope, although the CIA abused detainees in ways that exceeded the authorized interrogation methods. Human Rights Watch was unable to find any evidence that the investigators interviewed any victims of CIA torture.

It is harder to evaluate the extent to which US military torture in Afghanistan has been investigated and prosecuted. In 2015, the US reported to the United Nations Committee against Torture that its military has opened 70 investigations into detainee abuse that resulted in trials by courts-martial, but no time period is provided and this information is not publicly available. 

In her application, the prosecutor submits that she “has been unable to obtain specific information or evidence with a sufficient degree of specificity and probative value that demonstrates that proceedings were undertaken with respect to cases of alleged detainee abuse by members of the US armed forces in Afghanistan.” In addition, the application finds that no national investigations or prosecutions have been conducted or are ongoing against those who appear most responsible for alleged crimes committed by the CIA. There are ongoing investigations in Poland, Romania, and Lithuania, and the prosecutor says that if an investigation is opened, she will continue to monitor the progress of relevant proceedings, whether they relate to the same persons and conduct as those of interest to the ICC, and whether such efforts are genuine. 

5. Wasn’t the ICC supposed to act earlier? Why did this take so long?

In November 2016, the prosecutor said in a report that her office would make a final decision on whether to seek permission to open an investigation “imminently.” Since then, however, authorities in Kabul have sent “substantial” new information to the prosecutor’s office. Since the ICC is a court of last resort, stepping in only when national authorities are unwilling or unable to do so, it had to review this information before making a final decision. In her application, the prosecutor highlights that the timing of her request was affected by “challenges in verifying allegations relating to subject-matter jurisdiction” and “issues related the existence and/or genuineness of relevant national proceedings.”

6. Will the allegations the prosecutor has identified in her application form the basis for future prosecutions?

Not necessarily. If the judges grant an investigation, the prosecution will conduct a full investigation to determine what, if any, cases to bring before the court. 

7. What will the ICC judges consider in deciding whether to approve an investigation?

The ICC Pretrial Chamber, consisting of three judges, will consider several factors, including whether: 

  • There is a reasonable basis to believe that a crime within the jurisdiction of the court has been committed;
  • National authorities have shown themselves unable or unwilling to carry out genuine investigations or prosecutions, given that the ICC is a court of last resort and will only step in if there are no genuine national proceedings;
  • The potential case(s) is of sufficient gravity to justify further action by the ICC; and
  • Considering the gravity of alleged crimes and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

In deciding, the judges will rely on the prosecutor’s application and supporting materials, and information received from victims. The judges could also ask the prosecutor or victims to provide additional information.

There is no set deadline for the judges to make a decision under the Rome Statute. The judges took just over three months to decide to authorize an investigation into possible war crimes in Georgia during its 2008 conflict with Russia over South Ossetia, and the decisions to open investigations in Kenya over its 2007-08 post-election violence and Côte d’Ivoire over its 2010-2011 post-election crisis took about four months.

8. Do member countries have to help the ICC?

The ICC relies on cooperation from its member states for many aspects of its mandate, including access to crime scenes, witnesses, and arrests. Human Rights Watch and other nongovernmental organizations have called on the Afghan government, as an ICC state party, to cooperate fully with the court, as the Rome Statute requires. 

9. Will victims have a chance to weigh in with the judges?

Yes. The judges of the Pretrial Chamber can consider information provided in writing by victims – that is, by people harmed by a crime falling within the court’s jurisdiction.

Under the Rome Statute, the prosecution must notify known victims of its intention to seek permission to investigate. The prosecution can provide a general notice to groups of victims, for example, by publishing the notice in a newspaper.

Typically, victims are given 30 days from the date the prosecution files the request to authorize an investigation to send information to the court. Here, the judges have already set a deadline of January 31, 2018 for victims to submit their views.

Indeed, there are compelling reasons to extend the time for victims in Afghanistan to submit their views, especially since Afghanistan remains in a state of armed conflict and abuses have often occurred in remote areas, which will make organizing outreach to victims difficult. 

10. Is it significant that there could be another investigation outside of Africa?

If authorized, an investigation in Afghanistan will be the court’s second outside Africa. The ICC’s judges opened the investigation into Georgia in 2016. Other situations under investigation are the Central African Republic, Côte d’Ivoire, Darfur, the Democratic Republic of Congo, Kenya, Libya, Mali, Burundi, and Uganda.

Since 2009, the ICC has faced a backlash from a vocal minority of African leaders claiming the ICC is unfairly targeting Africa. This criticism does not consider that most investigations were initiated at the request of African governments. In October and November 2016, several African states went a step further: South Africa, Burundi, and Gambia took action to withdraw from the ICC. However, earlier in 2017, Gambia reversed course and South Africa’s withdrawal has stalled after South African courts found the government did not follow the necessary steps. Burundi’s withdrawal from the ICC took effect in October 2017. 

A number of African countries have spoken up in support of the ICC, including Botswana, Côte d’Ivoire, Malawi, Nigeria, Senegal, Sierra Leone, Tanzania, and Zambia. Activists across Africa have called on African governments to support the ICC.

The ICC prosecutor has made clear that regional balance is not a factor it considers in selecting situations to investigate. Nor should it be. Since the ICC is an international court operating in what are often highly politicized contexts, the prosecutor and the court need to be clear in their decision-making that the court is an independent, impartial judicial institution. 

11. How will people in Afghanistan learn about the role of the ICC?

The ICC should conduct public information and awareness-raising activities to improve understanding of the role of the ICC and the crimes the prosecutor is investigating.

Afghanistan’s fraught security situation has made it hard for the Office of the Prosecutor to visit the country, so communities in Afghanistan most likely have a limited understanding of the ICC and its technical procedures, including the investigation.

Considering the difficult security situation, to the extent that it is feasible, the registry should make efforts to disseminate objective information about the court as early as possible. Experience from other countries with ICC investigations indicates that a lack of information about the court can lead to misconceptions. For instance, since Afghanistan has been subject to cycles of violence for decades, victims – and nongovernmental groups that work with them – may harbor outsized expectations about the court’s ability to address abuses committed before May 1, 2003, the beginning of the court’s jurisdiction. Further, unless people in Afghanistan get objective information early, the court will be vulnerable to deliberate efforts to distort or politicize its mandate by those who may be under ICC scrutiny.

The registry should seek out information from other organizations – such as the UN mission in Afghanistan – with experience in conducting public information campaigns to learn from them. Staff could, for example, provide general information about the court, its independent mandate, and explain what the court considers when deciding whether to open an investigation.