Afghans who are skeptical about whether the US-Taliban agreement and planned intra-Afghan peace talks can deliver a better future, now have reason to believe that justice might not be squandered in the process. Today, judges on the International Criminal Court (ICC) authorized the court’s prosecutor to investigate possible war crimes and crimes against humanity in Afghanistan since May 1, 2003.
It was a rocky road to get here. In November 2017, after a more than 10-year analysis of the Afghanistan situation, ICC Prosecutor Fatou Bensouda asked the court to approve an investigation into alleged crimes, including targeted attacks on civilians by the Taliban and other insurgents; torture, rape, and enforced disappearances by Afghan police and security forces; and torture by the United States military and Central Intelligence Agency (CIA).
Despite acknowledging the court’s jurisdiction over the crimes and that Afghanistan was making no effort to seek accountability, an ICC pre-trial chamber rejected the investigation as not being in the “interests of justice.” In the ruling, the judges noted that “changes within the relevant political landscape” – likely referring to the US-Taliban talks as well as the Trump administration’s public attacks on the ICC – would make an investigation too difficult.
But in today’s decision, the appeals chamber overruled the lower court’s interpretation of the court’s founding treaty – which had been widely criticized, including by Human Rights Watch – and allowed the investigation to go ahead.
Coming amidst genuine movement toward peace talks, the ruling is an important reminder of the costs of impunity. The Bonn Agreement, signed in December 2001 after the defeat of the Taliban government, failed to provide justice for rights violations by all sides and fueled further atrocities by allowing serious human rights abusers to maintain official and unofficial positions of power.
Today’s decision reaffirms the ICC’s role as an institution that might change these dynamics by challenging entrenched impunity. It has offered Afghans who have long sought justice hope that they may one day see it realized.
