The Long Wait for Justice: Will the ICC Investigate Crimes in the Afghanistan Situation?

(Kabul, New York, Paris, The Hague) Today marks one year since the Prosecutor of the International Criminal Court (ICC) sought authorisation to open an investigation into war crimes and crimes against humanity allegedly committed by various parties, including the Taliban, Afghan forces and U.S. military and CIA officials, in the situation of Afghanistan since 2003. Having long advocated for the need for accountability in Afghanistan, FIDH, Armanshahr/OPEN ASIA, and the Center for Constitutional Rights (CCR) welcomed the Prosecutor’s decision to finally proceed with an investigation. One year on, we express our concern and dismay that the victims are still waiting and wondering whether a competent and independent international court will ever look into the crimes committed against them.

The situation in Afghanistan has been under a preliminary examination by the ICC since 2007. During this time, the ICC Prosecutor assessed whether there was a reasonable basis to believe that crimes falling within the Court’s jurisdiction had been committed and whether genuine investigations and prosecutions had been or were being carried out on the national level. The Prosecutor also assessed the admissibility of potential cases in terms of gravity and the interests of justice. After being satisfied that the legal requirements were met, on 20 November 2017 the Prosecutor requested the ICC Pre-Trial Chamber’s authorisation to proceed with an investigation.

“After a preliminary examination that lasted a decade, an additional year of waiting for victims is unacceptable. Victims who were overwhelmingly in favour of the commencement of this investigation and who continue to suffer from the crimes against humanity and war crimes committed in the context of the ongoing armed conflict, deserve to know if justice is on the horizon and if the ICC is ready to bring them relief.”

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

The amount of time taken to decide on the Afghanistan request is unprecedented. This is the fifth situation in which the Prosecutor decides to open an investigation proprio motu (i.e. initiating an investigation without being seized by a referral from a State Party or the United Nations Security Council). In such cases, the Prosecutor can only proceed with an investigation after receiving authorisation from a bench of three Pre-Trial Chamber judges. In the four former authorisation requests, a decision has always been rendered relatively shortly after the request: 50 days for Burundi; 102 for Cote d’Ivoire; 106 for Georgia; and 125 for Kenya. U.S. National Security Advisor John Bolton attacked the ICC, declaring it "dead to us", and threatened sanctions against the Court and prosecution of its judges and prosecutors if the investigation is opened.

“The Prosecutor’s request made clear that there is a reasonable basis to investigate crimes by the Taliban, Afghan forces and by U.S. actors for torture in Afghanistan and on the territory of other States Parties. While the U.S., in particular, has spoken out against opening the investigation, the judges must act with independence and issue their decision without further delay.”

Katherine Gallagher, Senior Staff Attorney at the US-based Center for Constitutional Rights

Following the Prosecutor’s request, victims had two months to submit their observations. Despite logistical difficulties, including the short period of time for the submissions, as well as the escalation of violence in Afghanistan, hundreds of representations were submitted by, or on behalf of, Afghan victims. Submissions expressed their views on why an investigation by the ICC is important, and on what the scope of such an investigation should be. Likewise, victims of the U.S. torture program, including Guled Duran and Sharqawi Al Hajj who are both currently detained at Guantánamo Bay, submitted their representations. The submission period showed that victims’ demands for justice are and will remain high despite the challenges on the ground. It was also a valuable opportunity for the ICC to learn how to facilitate interaction with, and access to, victims in a challenging environment.

If an investigation in the situation of Afghanistan is authorised, it will be the second ICC investigation outside of Africa, after the ICC opened an investigation in Georgia in January 2016, and the first in Asia.

For more information, please read our Q&A on Afghanistan and the ICC.

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