As a permanent, independent and international court, the ICC was meant to signal that no one is above the law. It was intended to be a court that victims could turn to, should justice elude them domestically. Afghanistan has experienced decades of war, marked by successive and relentless periods of conflict since 1978. In 2018 alone, the UN reported record levels in civilian deaths. Similarly, crimes of torture linked to the conflict in Afghanistan, allegedly committed by US armed forces and CIA officials in what are known as CIA “black sites” on the territory of other ICC Member States remain unpunished. Torture, the oppression of women and girls and suicide attacks have become daily feature of life with renewed fears that the Taliban could return and upset the fragile gains that women have made in the last 18 years.
As this group knows, on 12 April 2019, judges at the ICC refused to allow the Prosecutor to investigate war crimes and crimes against humanity allegedly committed by the Taliban, the Afghan National Security forces, and US armed forces and the CIA. In addition to the unprecedented and inexplicable delay in rendering a decision, the judges ultimately rejected an investigation in Afghanistan, reasoning that an investigation would be against the ‘interests of justice.’
Despite agreeing with the Prosecutor that there was reasonable basis to believe that crimes within the ICC’s jurisdiction had been committed and these crimes were of sufficient gravity to warrant an investigation, the ICC judges took into account a number of factors including:
1- purported lack of cooperation by both Member States of the ICC and non-Member States
2- the availability of evidence and surrender of potential suspects and
3- budgetary considerations.
Notably, and that’s concerning, the judges noted “subsequent changes within the relevant political landscape” as informing their decision – a reference that can only be understood to refer to the steady-stream of attacks on the Court by the United States in the lead-up to the decision.
Our member-organization, the Center for Constitutional Rights (CCR) has filed a complaint with the UN Special Rapporteur on the Independence of Judges and Lawyers, asking him to investigate the US interference at the ICC.
It is difficult for victims to imagine how an ICC investigation in Afghanistan would not serve the interests of justice. The unprecedented levels of impunity, lack of redress and seriousness of the crimes committed in that conflict is exactly what the ICC was created to address in the first place. The Prosecutor and legal representatives of victims have lodged appeals with both the Pre-Trial Chamber and the Appeals Chamber. Last week, on 11 July 2019, FIDH, and two NGOs including Armanshahr/OPEN ASIA and the Afghanistan Transitional Justice Coordination Group (TJCG) filed amicus curie submissions stating that a weak domestic judicial system, collapsed state institutions and limited access to justice mean that for the vast majority of Afghan victims, the ICC remains their last bastion of justice. We further said that Afghans remain expectant that an investigation by the ICC will at the very least have a deterrent effect and help to curtail the incessant cycles of impunity and criminality in the country.
To ensure that the cause of justice is not perverted, we call upon all State parties to the ICC to recommit fully to supporting an independent, impartial and credible International Criminal Court. We call on States to commit in not only word but deed to ensure that the Court is staffed by judges, lawyers and investigators of the highest caliber who are provided adequate resources – especially in the investigative stage – to fulfill their duties. We call on States to affirm, publicly, that they will meet their obligations to cooperate with the Court in providing information during the investigative stage, in effecting arrest warrants and in providing support and protection to victims and witnesses – even when such cooperation is politically uncomfortable. We call on States to take seriously their commitments to uphold the rule of law, whether at the ICC or in their national courts, in their actions domestically and through their foreign policy, so that next year, all victims can mark this International Justice Day as a cause for celebration.