The impending start of the intra-Afghan peace negotiations has raised hopes for an end to Afghanistan’s long war. Among the many grave anxieties remaining, however, is whether a future agreement will address past human rights abuses or if justice and accountability will simply be swept under the rug.
There is a ray of hope that some measure of accountability could finally reach Afghanistan: the International Criminal Court (ICC), after more than two years, finally granted the request by its prosecutor, Fatou Bensouda, to open an investigation in relation to the conflict in Afghanistan dating back to 2002. For now, progress is stalled, in part because the government of Afghanistan has asked the prosecutor to hold off so it can provide evidence that it can and will hold those responsible for war crimes and crimes against humanity to account. If she isn’t satisfied, she could take steps to open an investigation.
The ICC is a court of last resort and only steps in where national authorities are not willing or able to investigate grave international crimes. The conflict in Afghanistan has been marked by a laundry list of war crimes and possible crimes against humanity. But the Afghan government’s record on justice is poor. It has failed to bring to justice senior military and police officials credibly accused of torture, rape, and extrajudicial executions. None of the other parties to the conflict have demonstrated the capacity or will to prosecute crimes by their forces and others.
On April 15, the government requested a deferral of the ICC prosecutor’s investigation and submitted information on 151 cases it claimed it was investigating or had prosecuted.
But this number is deeply misleading. Of these, only 28 made it to court. For the remaining 123 cases, the government claims that “official letters have been issued to Afghan National Police (ANP), National Directorate of Security (NDS), and other involved bodies, and arrest warrants have been issued in some cases. None of the 26 cases involving government security forces include those most responsible among senior police, intelligence or military personnel in ordering or condoning alleged crimes. For example, senior officials of the Afghan National Police in Kandahar have been accused of systematic torture and enforced disappearances. None have been prosecuted for these crimes.
The Afghan government’s efforts to hold the Taliban to account have not been better. The Taliban have been responsible for thousands of unlawful civilian deaths and injuries from bombings and IED attacks. They have also deliberately targeted civilians, including members of the media and judiciary. The Taliban do not punish their own commanders for such abuses, but instead punish civilians who complain about Taliban actions. The Afghan government claims to be investigating 36 cases of Taliban members accused of serious crimes. It has not specified how many of them —if any—it has arrested or prosecuted. Further, suspects in some serious cases were swapped in prisoner or hostage exchanges.
In its submission to the ICC, the Afghan government also claims to be investigating a number of crimes by international forces, but none of the supposed investigations cover suspected war crimes by the US military or Central Intelligence Agency (CIA).
Even in the US, accountability has been elusive. For instance, the CIA’s rendition, detention, and interrogation program has been the subject of extensive documentation, including by a bipartisan congressional legislative committee, and yet there has been no meaningful action before US courts.
Under the Trump administration, the US government has launched an unprecedented attack against the ICC, revoking the ICC prosecutor's visa and on Thursday, June 11, announced new sanctions on ICC employees and others involved in any investigations in a clear attempt to block victims of serious crimes from seeking justice. Afghanistan’s struggling national justice system cannot be expected to credibly fill the impunity gap.
The ICC’s approach to international justice is designed to reinforce and motivate the role of national authorities to investigate and prosecute war crimes and crimes against humanity, rather than to duplicate or supersede them. But despite many years of donor support for building effective institutions, the Afghan government has failed to investigate serious crimes perpetrated by powerful individuals. Often, it has rewarded, not punished, some of the gravest offenders. It’s hard to see Afghanistan credibly turning a page to pursue justice now.
That’s not to say that justice is impossible in Afghanistan, but the political will – both in the Afghan government and among its international partners - to make it happen remains feeble. Although Afghan human rights activists have demanded that the peace talks be inclusive and victim-centered, there are concerns that the talks will seek some formula similar to the 2008 amnesty law and the 2016 immunity deal provided to a notorious warlord, Gulbuddin Hekmatyar, and his fighters. At that time, the European Union and Norway welcomed the peace process but called weakly for “all achievements gained in the last fifteen years…to be well observed and respected, particularly concerning transitional justice [and] human rights.”
A stronger intervention is needed now. With the ICC offering the only possible path to justice for Afghan victims, ICC member states in Kabul need to step up and support the need for credible accountability, both by the ICC and the national authorities. For the many thousands of Afghans anxious about whether the intra-Afghan peace talks can deliver justice, the court offers hope that they may one day see it realized.