This potential investigation sounds like big news, especially if alleged US crimes are examined. What kinds of crimes have taken place in Afghanistan since 2003?
The prosecutor said she is seeking permission to investigate alleged crimes against humanity and war crimes by the Taliban and affiliated forces, Afghan National Security Forces, and US armed forces and the Central Intelligence Agency (CIA). Human Rights Watch and others have documented serious abuses by the Taliban including killing journalists and judges, and attacking civilians. Afghan government forces have tortured detainees and carried out enforced disappearances and extrajudicial killings. There’s been almost no justice for any of these crimes. For the US, there are credible allegations of US torture of people in US military and CIA custody to advance the US’ goals in Afghanistan.

How soon will the investigation start?
The prosecutor can only start collecting evidence if a three-judge panel approves the investigation. A decision is still some months away.

The International Criminal Court prosecutor’s request for an investigation in Afghanistan on November 20, 2017, could begin a long overdue path to justice for victims of grave international crimes. 

But surely the prosecutor thinks she can eventually build a case?
The prosecutor’s office is probably confident that they will have the goods if they are requesting an investigation. The prosecutor’s office has been gathering information on Afghanistan since at least 2007, so there’s 10 years of data on abuses by all these different actors, and it seems there’s finally enough information to merit further action.

What kind of evidence will the ICC be looking for in Afghanistan if an investigation goes ahead?
Investigators will look for evidence that the abuses occurred, and that they meet the requirements under international law for war crimes or crimes against humanity. The goal is also to gather evidence about who was in charge, and who authorized the abuse – going as high as possible up the chain of command.

How does an ICC investigation work – do their staff go into the country?
In theory, yes, ICC investigators would collect information on the ground. But a lot depends on cooperation from Afghanistan’s government to enter the country, to interview witnesses, access crime scenes, and share documents. Afghan authorities had been very slow to share information until very recently. Because the conflict in Afghanistan is ongoing, security concerns will make the ICC’s job much harder. Investigators could also potentially gather evidence outside the country, like statements from victims in refugee communities and testimony from experts.

Do you think Afghanistan will cooperate with the ICC?
As a party to the ICC, Afghanistan’s government has a legal obligation to cooperate. Yet the fragile political landscape in the country may mean the government is less willing to do so.

How could Afghanistan actually block the investigation?
Non-cooperation can be overt or it can be subtle. It could be something as simple as never responding to requests for visas. Cooperation is essential but can be very hard to come by.

Are senior figures in Afghanistan likely to be worried?
Potentially, yes. Especially given Afghanistan’s history of promoting those responsible for serious abuses to senior positions in the security forces and the government. This also helps to explain why there’s been almost no justice for these war crimes, and why the ICC is now stepping in.

Why is the ICC investigating the US?
The ICC is a court of last resort, so it’s not going to act unless there’s been no justice at the national level for the conduct and the people it’s pursuing, be that in Afghanistan or the US. Considering the gravity of the crimes alleged against the US, especially for CIA abuses but for US military abuses as well, the US justice response has been anemic. While the US Justice Department did open an investigation into the CIA’s use of torture, the prosecutor found that there have been no national investigations or prosecutions in relation to CIA abuses in the US.

It’s been harder to evaluate the US military’s response to allegations of torture. In 2015, the US reported to the United Nations Committee against Torture that its military had 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. Indeed, in her application, the prosecutor said that she had been unable to get enough specific information to show that there were proceedings for detainee abuse by US forces in Afghanistan.

If the ICC seeks arrest warrants for US personnel, who could be implicated?
The prosecutor has flagged that “senior levels of the US government” approved plans or policies that led to abuses. This suggests that both those who authorized the torture and those who carried it out could be investigated.

Will the US actually hand over US citizens for trial?
The US never ratified the Rome Statute, the founding document for the ICC, so it is not a party to the ICC. It is under no legal obligation to surrender any US citizen to the court.

So US nationals who may have ordered or performed torture will escape justice?
If the ICC issues arrest warrants against US citizens, it could generate domestic pressure on US authorities to hold people who have evaded justice accountable. And anyone identified may find it much harder to travel to 123 countries that are parties to the ICC, because they could face arrest upon arrival.

But unless they travel to these countries, they won’t be arrested, right?
It is unlikely. This is the main weakness of the ICC – it relies on the cooperation of governments, including to enforce arrest warrants.

How important is it that the US is being investigated as well as the Afghans?
It’s important because it shows that nobody’s outside of the law – if nationals from a powerful country commit the worst crimes, they could be brought to justice. But while the US angle is important, it shouldn’t overshadow the fact that Afghan government forces and the Taliban have brutally abused civilians for many years, and they may now finally have a path to justice.

Does the ICC system rely too much on the good will of countries in handing people over?
There’s simply no choice – the ICC depends on the cooperation of its member countries to work.

Given that their officials could face trial, why do governments ever agree to sign up to the ICC?
The ICC came about after the conflicts and genocide in the former Yugoslavia and Rwanda, and the consensus emerged that if you’re committing the worst crimes known to humankind, then you should face justice. That said, many countries sign up and think it’s never going to apply to them.

Haven’t some countries withdrawn from the ICC? What does this mean for the Afghanistan investigation and the future of the ICC?
A vocal minority of African countries have criticized the ICC because all but one of its investigations have been in Africa – but that’s unfair, because most of these were initiated at the request of African governments themselves. In October and November 2016, several African countries went a step further: South Africa, Burundi, and Gambia took action to withdraw from the ICC. However, earlier this year, Gambia reversed course and now South Africa’s withdrawal has stalled after South African courts found that the government didn’t follow the necessary steps. Burundi is the only country to officially withdraw, which became official in October 2017. A number of other African governments have spoken out to reaffirm their commitment to the court.

When the ICC decides to investigate, it’s not thinking about regional “balance” – its primary focus is where it can deliver justice. The ICC’s possible investigation into Afghanistan shows the court’s global reach, and its potential to dismantle deep-rooted impunity around the world.