ICC member countries should reaffirm the court’s independence in the face of political pressure from the US and other countries hostile to the ruling.
“The ICC decision to allow an investigation into alleged atrocities in Afghanistan despite US and other pressure reaffirms the court’s essential role for victims when all other doors to justice are closed,” said Param-Preet Singh, associate international justice director at Human Rights Watch. “The ruling sends a message to current and would-be rights abusers, no matter how powerful, that justice may one day catch up with them.”
The ruling stemmed from the prosecutor’s appeal of an April 2019 decision by an ICC pretrial chamber rejecting her office’s request to open an investigation. The pretrial chamber found that an investigation would not be in the “interests of justice,” citing limited prospects for success due to such factors as the “volatility” of the political climate “surrounding the Afghan scenario” and the likely lack of cooperation by the countries involved. The US government had previously threatened the court and its member countries with retaliatory measures over a potential Afghanistan investigation and imposed a visa ban on the ICC prosecutor, Fatou Bensouda.
In November, Human Rights Watch, together with eight other nongovernmental organizations, filed a brief with the ICC addressing the pretrial chamber’s flawed analysis of the “interests of justice,” among other issues. The appeals chamber found that the pretrial chamber had erred in considering the interests of justice but had otherwise made all the factual findings necessary for the investigation to move ahead.
In its decision, the appeals chamber authorized an investigation into alleged crimes in Afghanistan since May 1, 2003, as well as other alleged crimes in other ICC member countries since July 1, 2002 that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation in Afghanistan. Afghanistan has been an ICC member country since May 1, 2003.
In her November 2017 request, the prosecutor alleged that there were also crimes committed in clandestine CIA detention facilities in Poland, Romania, and Lithuania – all ICC members. A recent Human Rights Watch report found that CIA-backed Afghan forces committed summary executions and other serious abuses with impunity in Afghanistan between late 2017 and mid 2019 that could also fall within the court’s jurisdiction.
The United States is not a member of the ICC, though it has been critically important to the transfer of two ICC suspects to The Hague. Under the court’s Rome Statute, the ICC has jurisdiction over all crimes committed on the territory of a member state, regardless of the nationality of the accused. The ICC, a court of last resort, can only step in when national authorities do not genuinely pursue cases, as the prosecutor found here.
US Secretary of State Michael Pompeo, when announcing in March 2019 a policy of visa bans on certain ICC officials, said that the US would be prepared to take further actions, including economic sanctions, if the ICC moved ahead with the investigation. At a news conference after the March 5 decision, he indicated that the US would announce its response in the coming weeks. ICC member countries should amplify their support for the court’s independence against Trump administration bullying tactics, Human Rights Watch said.
The ICC decision comes ahead of intra-Afghan peace talks between the Taliban and the Afghan government and other Afghan political leaders, tentatively scheduled to begin March 10. The talks should prioritize human rights and justice to promote a durable peace, Human Rights Watch said. Human Rights Watch research in Afghanistan and in other conflict situations has shown that the absence of accountability for grave international crimes can have a lasting negative impact on efforts to achieve peace.
“The Afghan people have paid a high price for their leaders’ failure to prosecute war crimes during previous political transitions,” Singh said. “The ICC decision offers victims of abuses in Afghanistan some real hope for justice.”
Afghanistan has endured armed conflict for over four decades, and victims and nongovernmental groups that work with them may have outsized expectations about the number of cases the court can prosecute. Lack of clarity about the court’s mandate may encourage deliberate efforts to distort or politicize its role that could erode victims’ and witnesses’ willingness to share information with investigators.
To mitigate these risks, the ICC should initiate steps to explain the nature and scope of the investigation, including its limits, Human Rights Watch said.
The ICC investigation faces numerous challenges. A fraught security environment and a difficult political landscape for justice in Afghanistan highlight both the need for an ICC investigation and the difficulties the court may face in gathering evidence. The ICC lacks a police force, so it must rely on ICC member states, notably Afghanistan in this case, to cooperate with the court in its investigations, arrests, and prosecutions.
“Afghanistan and other ICC member countries should make clear they will cooperate with the prosecutor’s inquiry,” Singh said. “Broad support for the court’s independence will be critical to the investigation’s success and help ensure victims have a path to justice that they so desperately need.”