Djeyhoun Ostowar joins JiC for this fascinating glimpse into some of the key issues and dilemmas that frame any potential intervention by the International Criminal Court into Afghanistan. Djeyhoun is a PhD student at the War Studies Department of King’s College London where his research focuses on the nexus of peace and justice in Bosnia and Afghanistan, in particular assessing the timing and sequencing of different peace building and transitional justice mechanisms.

(Photo: UNAMA)

Debates on justice in Afghanistan have generally neglected the role of the International Criminal Court (ICC). International and national attention has focused on domestic opportunities for justice. Following the notorious silence on accountability in the initial phases of the post-Taliban transition, the work of the civil society, in particular the Afghanistan Independent Human Rights Commission (AIHRC), inspired some hope that justice for heinous crimes committed during the different stages of the unyielding conflict in Afghanistan (1978 – ) could still be achieved. However, the comprehensive and ambitious Transitional Justice Action Plan that was signed by President Karzai in 2005 failed dramatically and was eventually discarded altogether in 2010.

With the disappointment over transitional justice options in Afghanistan, the passing of an amnesty law in the Afghan parliament in 2007, and the now imminent drawdown of military and political engagement of the international community in the country after 2014, the ICC has become one of the very few serious options still available in the face of impunity for past crimes and a lack of serious accountability measures for ongoing violations in Afghanistan. Afghanistan is currently only at the preliminary investigation stage at the ICC but at some point in the near future it will have to be decided whether formal investigations should start (the country has been in the preliminary examinations for more than 6 years – the longest period so far). There are many issues that can be raised in connection to the potential operation of the ICC in Afghanistan but the key question is how the ICC could affect the prospects for peace and stability in the country.

The ICC in Afghanistan: Obstacles Abound

Any potential involvement of the ICC in Afghanistan faces many challenges/ It is therefore important to be realistic about what the ICC can achieve in terms of justice and accountability in this country. There is not only the obvious temporal limitation of addressing only the crimes that were committed from 1 may 2003 (the date of the start of the ICC jurisdiction on the territory of Afghanistan) – thereby leaving various incidents and abuses prior to this date beyond the consideration of the court – but also a number of other concrete practical and legal obstacles. There is a basic question of who will be responsible for and likely to follow through the commitment of detecting, apprehending and extraditing potential ICC indictees.

As it stands, the prospects are not particularly encouraging. Neither the Afghan government, despite its ratification of the Rome Statute, nor the government of the main international intervening force, the US, has shown openness to the idea of delivering own citizens at an international court. There is no need to explain that the chances that the Taliban and affiliated armed groups will ever cooperate with an international court are almost nonexistent.

Furthermore, there are serious legal challenges associated with the endeavour. Washington still does not recognize the jurisdiction of the ICC and even has a controversial law dubbed ‘The Hague Invasion Act‘, under which the American forces could unilaterally invade the Netherlands to free American war crime detainees. There is no historical precedence on this yet so the validity and practical value of the Act has not been tested. But as pointed out by Kevin Jon Heller in a post on the topic, the US and Afghanistan also have a ‘bilateral immunity’ agreement, signed in September 2002. This agreement imposes direct legal constraints on the Afghan government’s ability to surrender US citizens to the ICC, independently from the rather slim chance of a hypothetical situation where the Afghan government would seek to apprehend an American citizen in order to extradite him/her to the Court (imagining a top Taliban detainee being delivered to the ICC by Kabul instead of being prosecuted at home is only slightly more imaginable).

The ICC, and perhaps the International Court of Justice (ICJ), in case of a legal dispute between the US and Afghanistan, would have to grapple with this limitation as a separate question. In addition to the problems mentioned above, there are a multitude of other legal and practical challenges associated with investigating specific crimes in a situation of ongoing conflict, identifying direct suspects when some of them may not longer be on the territory of Afghanistan, and dealing with such issues as ‘command responsibility’ and ‘proportionality’ in military operations.

An Afghan soldier in Wardak Province, Afghanistan (Photo: Mauricio Lima / The New York Times)

Hope Remains

While the above mentioned challenges should not be ignored nor be underestimated, they do not provide sufficient reason to give up the ICC option. Some see an ICC intervention as potentially detrimental. Rahim Kanani warned against “the inevitable political ramifications” in case an official investigation by the ICC would start. He explained: “If a case is officially opened, the Prosecutor must deal with both allegations against the Taliban and the NATO troops. While the former yields no grief, the latter will surely cause a stir”. However, an immediate question here would be: is there any situation where the ICC has opened investigations that was completely uncontroversial politically? Political stir and controversy are not in themselves sufficient justification for opposing the involvement of the ICC. Similarly, the challenge of realizing apprehensions and extraditions is not particular to the case of Afghanistan. In the situations of Northern Uganda and Sudan, for example, this problem was apparent, with the ICC not being able to count on sufficient cooperation in terms of arresting and delivering the indictees. Other issues, such as legal obstacles related to jurisdiction, the bilateral immunity agreement, command responsibility are all real challenges. However, as in any similar situation, these questions should be left for the ICC – or another appropriate legal authority – to adjudicate.

Peace versus Justice in Afghanistan

A key issue that causes serious concern, however, and which is hard to tackle at this stage, pertains to the potential consequences of the ICC operation in Afghanistan in terms of peace and order. There is a risk that the involvement of the ICC in Afghanistan could result in a total disengagement of the US in the country following the troop withdrawal in 2014, leaving the government more or less on its own to deal with the challenge posed by the Taliban and other insurgents. In addition, since the beginning of the US-led intervention in Afghanistan, many of the actors who could potentially be sought in connection with war crimes and other heinous crimes are stronger now than they were around 2001-2002; they now enjoy a larger disruptive capacity. This is true for those whom the international community (once) labeled as warlords – some of whom were empowered and now enjoy various positions of power and influence. It is equally true for the Taliban, who have regained strength following their defeat in 2001. The Taliban managed to progressively reassert themselves, expand their area of activity from the South to the rest of the country and disrupt security with their (high profile) targeted killings, suicide attacks and other forms of violent activity. Furthermore, the Afghan government together with some international mediators are currently actively pushing to reach some sort of peace or political agreement with the Taliban. Despite the fact that seeking a hasty settlement with the Taliban is a highly risky and controversial intrigue, one has to consider potential negative consequences of an ICC threat hanging over those talks.

It is clear that any future ICC trial could yield disincentives for actors considering a political settlement and instead encourage them to seek violent resistance. However, as it stands today, whatever negotiations that have taken place thus far did not bring us anywhere near of negotiating concrete settlement options. In fact, recent media reports claim that the militant wings of the Taliban are showing a total unwillingness to negotiate. The ICC would definitely be an unwelcome element to the ‘warlords’ and other potential indictees, but the Court is not yet threatening peace options with the Taliban as there are none on the table right now.

Of course, the ICC could also play a positive role. As Afghan domestic accountability mechanisms are extremely weak, the ICC could have an important role by exercising some sort of deterrence against committing further violations. However, the deterrence effect will largely depend on the credibility of ICC threats to prosecute as well as the support it receives from national and international actors. In other words, the deterrence effect will very much depend on the likelihood of any accused actually ending up in The Hague .

Afghan President Karzai with former US President George Bush. (Photo: Musadeq Sadeq / AFP / Getty Images)

In the Interests of Justice?

In the most recent report on Preliminary Examination Activities published last month, the ICC’s Office of the Prosecutor (OTP) concludes that “war crimes and crimes against humanity were and continue to be committed in Afghanistan”. Based on the investigations conducted thus far, the OTP believes there is a ” “reasonable basis” to conclude that crimes within the jurisdiction of the Court were committed in Afghanistan. The ICC looked at the responsibility of anti-government forces (read: the Taliban and affiliated armed groups), the pro-government forces and international forces.

The November 2013 report marked the transition from the phase 2 to phase 3 of the preliminary investigations procedures. The jurisdictional questions of the alleged crimes, which were the focus of phase 2, have now been more or less settled. The investigation can now expand to examine admissibility issues in which the existence and ‘genuineness’ of relevant national proceedings will have to be assessed pursuant to the complementarity principle. This is a critical phase where the ICC will look at the state of affairs of accountability in the country. It is hardly possible to imagine that the Court could conclude that the government is doing enough to meet its responsibilities under the Rome Statute.

If the court decides that the Afghan government appears ‘unable and unwilling’ to meet its obligations, which is a more likely scenario, the 4th and final phase of preliminary investigations will embark in which the ICC will assess the complicated question of ‘the interests of justice’. A noteworthy fact about this critical phase is that, in its consideration of the interests of justice, the ICC will not explicitly examine the dilemma of justice, security and order. As both the former and current ICC Prosecutors have noted, the interests of peace and security will have to be considered by more suitable international bodies, in particular the UN Security Council.