ICC: Appeals Set for Possible Afghanistan Inquiry

Press release
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9 Groups File Amicus Brief on ’Interests of Justice’ and Victims’ Right to Appeal

The International Criminal Court (ICC) Appeals Chamber will hold hearings from December 4-6, 2019 on the rejection of the prosecutor’s request to open an investigation into alleged war crimes and crimes against humanity committed in the context of the armed conflict in Afghanistan. Nine Afghan and international rights organizations filed a joint amicus curiae brief in the case on November 15, 2019.

In its April 12, 2019 decision, Pre-Trial Chamber II acknowledged that crimes within the jurisdiction of the ICC’s Rome Statute had been committed in Afghanistan, or in the territory of other ICC member countries and linked to the Afghanistan conflict, by the Taliban, Afghan forces, and United States military and Central Intelligence Agency personnel. The judges acknowledged that there were no investigations or prosecutions of those allegedly most responsible and that 680 of the nearly 700 applications from victims “welcomed the prospect of an investigation aimed at bringing culprits to justice, preventing crime and establishing the truth.” Still, the judges unanimously rejected the prosecutor’s November 2017 request on the basis that an investigation at this stage “would not serve the interests of justice.”

"Without the ICC, justice in Afghanistan is an empty slogan. The never-ending impunity in Afghanistan shows why the ICC, as a court of last resort, is so desperately needed.”

Zia Moballagh, member of the Afghanistan Transitional Justice Coordination Group

In reaching its conclusion, the Pre-Trial Chamber took numerous factors into account, in an unprecedented manner, including the lack of available evidence for older crimes. It also cited “changes within the relevant political landscape both in Afghanistan and in key States,” most likely referring to the US government’s threats to block any potential ICC investigation that could include US nationals or allies of the US. And it cited Afghanistan’s volatile political context, which could hinder meaningful cooperation for investigations and surrender of suspects and said that the prosecutor’s limited resources could be better used in cases that could have “more realistic prospects to lead to trials and thus effectively foster the interests of justice.”

In the appeal hearings, the court will hear from various sources, including representatives from the Office of the Prosecutor, the Afghan government, and legal representatives for victims. The judges have also given permission to more than a dozen Amici, or “friends of the court,” to weigh in on various procedural and substantive issues that emerged from the Pre-Trial Chamber’s decision. The high number of Amici submissions signify the important and unprecedented legal and factual issues arising out of the appeal.

The nine groups that filed the amicus brief are Armanshahr/OPEN ASIA, International Federation for Human Rights, Afghanistan-Transitional Justice Coordination Group, European Center for Constitutional and Human Rights, Human Rights Watch, No Peace Without Justice, The Center for Justice & Accountability, REDRESS, and the Women’s Initiatives for Gender Justice. The submission takes issue with the Pre-Trial Chamber’s problematic interpretation of, among other things, the interests of justice and underlines the importance of granting victims the right to appeal the decision.

“There have been no serious efforts to prosecute perpetrators responsible for war crimes or crimes against humanity in Afghanistan. An ICC investigation could be the first step in righting this wrong and hopefully bring the people of Afghanistan some much needed justice and accountability.”

Guissou Jahangiri, FIDH Vice-President and Armanshahr/OPEN ASIA Executive Director
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