Analysis: Can the ICC deliver justice in Afghanistan? | ICC News

The decision by the International Criminal Court (ICC) last year to open an investigation into alleged war crimes had raised hopes that the grave atrocities committed during the decades-long conflict in Afghanistan would not be swept under the carpet.

The investigation, announced by the ICC in March 2020 after more than two years of legal battle, concerned the Afghan armed forces, US troops, CIA agents and the Taliban armed group.

But their efforts to do justice to the Afghan victims were quickly reprimanded by the US, while the Western-backed Kabul government showed little sincerity in prosecuting the cases.

The investigation broke new legal territory in August when the Taliban – one of the main groups investigated for a long list of atrocities – came back to power following the collapse of President Ashraf Ghani’s government.

It has confronted the Court of Justice and the international community at large with an urgent question: who is the legitimate representative in Afghanistan?

The ICC has made squaring the circle a central point to advance the investigation. Earlier this month, the Pre-Trial Chamber II of the Hague Court requested the Secretary-General of the United Nations to provide information identifying the authorities currently representing the Islamic Republic of Afghanistan. The United Nations was asked to respond by November 8th.

The principle of complementarity

Mehdi Hakimi, director of the rule of law program at Stanford Law School, told Al Jazeera that the ICC is “vigilant and cautious” so as not to set a dubious legal precedent at a time of great uncertainty.

“The court is very careful that it must give the agents the opportunity to respond to the prosecutor’s request to open an investigation,” said Hakimi.

The rapid takeover of Afghanistan by the Taliban poses an urgent question for the ICC: Who is the country’s legitimate representative? [File: Eva Plevier/Reuters]

As the final court based on the principle of complementarity, the ICC can only assert its jurisdiction if the state fails to act, even if it is unwilling or unable to conduct real proceedings.

States have the right to request deferral and produce evidence that they are actually investigating the alleged domestic crimes.

Shortly after prosecutors opened the investigation in March 2020, the Ghani government requested a postponement. She then produced documents on more than 150 cases to show that the Afghan judiciary is vigorously investigating and prosecuting war crimes.

However, Human Rights Watch (HRW) accused the Afghan government of failing to bring officials charged with atrocities to justice.

A follow-up meeting that was held at the ICC headquarters in The Hague at the beginning of the year ended without advice from Public Prosecutor Fatou Bensouda, so the request for postponement was still open.

In September, Karim Khan, who succeeded Bensouda in June, applied for permission to lift the postponement and reopen the investigation because Afghanistan lacks credible authority to conduct an independent investigation.

“I have come to the conclusion that there is currently no longer any prospect of a real and effective domestic investigation,” said Khan in his motion to Pre-Trial Chamber II.

“This is not to say that there can never be any prospect of adequate and effective procedures in Afghanistan … but they are not currently available in Afghanistan,” he added.

Khan’s motion was denied by Pre-Trial Chamber II, which stated that statements or assumptions of a political nature had no place in court, and called on the UN to nominate the legitimate representatives of Afghanistan.

The investigation broke new legal territory in August when the Taliban – one of the main groups investigated for perpetrating a long list of atrocities – regained power [File: Hedayatullah Amid/EPA]

‘New territory’

The international community has so far been unwilling to recognize the Taliban-led government as the group is labeled a “terrorist” organization under US law.

However, should a Taliban government be recognized, it could hypothetically apply for deferral and claim to be willing and able to investigate internally the crimes of its own members.

“Everything is possible,” said Hakimi. “We are on new territory”

From a practical point of view, the position of the Pre-Trial Chamber II threatens to undermine the investigative capacity of the court, say legal experts.

“We must bear in mind what the purpose of the International Criminal Court is: to ensure that the most heinous criminal acts do not go with impunity,” said Hakimi. “So these procedural issues shouldn’t prevent the court from prosecuting those who have committed crimes against humanity.”

Ehsan Qaane, a researcher with the Afghanistan Analysts Network (AAN), expressed frustration with the position taken by Pre-Trial Chamber II.

“It is very clear that there will be no internal investigation in Afghanistan and that the Afghan government’s application to the prosecutor is no longer valid,” said Qaane.

“I don’t think this is a question of complementarity,” he said, adding that whatever the UN designates as a legitimate representative cannot be expected to have the ability to conduct a credible investigation.

While the Taliban could use the delay in reopening the investigation to destroy some of the evidence, Qaane said the Kabul case to the Taliban could paradoxically “ease the investigation.”

Parts of the country are now more accessible than they have been in years and Taliban members have given up their hiding places and are available for questioning investigators.

Justice, but for whom?

When Khan applied for Pre-Trial Chamber II clearance to reopen the investigation in September, Khan also said he was aware of the limited resources my office had in relation to the extent and nature of the crimes within the jurisdiction of the court.

To narrow the focus, he said he would prioritize Taliban and Islamic State crimes in Khorasan province, ISKP (ISIS-K), a member of ISIL (ISIS). It implied the lifting of crimes committed by US forces and the Afghan government.

The British legal campaign Reprieve has spoken out on behalf of clients who claimed to have been tortured by the CIA in the notorious Bagram Prison and of relatives of civilians allegedly killed in US drone strikes. Your claims run the risk of being excluded from investigation.

The US armed forces have been charged with torturing and holding Afghan detainees in Bagram Prison without evidence [File: WANA via Reuters]

“This was clearly a political decision – there really is no other way to interpret it,” Jennifer Gibson, a US attorney who leads Reprieve’s work on drones, told Al Jazeera. “It gave the US and its allies a free pass to release the prison.”

According to Gibson, the ICC prosecutor puts attacks like the one at Kabul airport high on the agenda in the waning days of the US withdrawal, but ignores cases like the US drone attack that soon involves a family of 10, including seven children who were killed afterwards. Reprieve claims this was one of many drone attacks on flawed intelligence agencies.

“The damage his decision has done is immense,” said Gibson. “It is devastating to the thousands of victims who have essentially been told that you don’t count because the crimes against you were committed by the West and its allies. When sending the message, [the prosecutor] effectively slammed the door on the last hope that many of these people had for some form of responsibility. “

US forces and their intelligence officials have been charged with war crimes since 2002, but the US courts have failed to take meaningful action. The US withdrew its troops from Afghanistan in August after 20 years, ending its longest war.

At least ten Afghan civilians were killed in a US drone strike in Kabul in August. The US later admitted that it had mistakenly targeted civilians [File: Hoshang Hashimi/AFP]

Legal perspective

From a legal perspective, prosecutors have discretion in how to proceed in the interests of justice, including narrowing the focus to the most heinous crimes.

Focusing the investigation on the Taliban and ISIS-K could lead to a stronger case, but the decision was seen by some as confirmation that the court was unable to investigate the world’s superpowers.

“All in all, I think this is very bad for the court’s reputation,” said Qaane. Allegations of bias and pro-Western sentiment were already circulating and the prosecutor’s decision should reinforce this view, according to the AAN analyst.

The United States is not a party to the ICC and has argued strongly that its nationals are not bound by its jurisdiction. Under the administration of former President Donald Trump, Washington put pressure on the ICC to cease investigations into its military by imposing sanctions on Bensouda.

US Secretary of State Antony Blinken lifted the sanctions earlier this year but said he still “strongly disagrees” with the ICC’s “efforts to enforce jurisdiction over personnel from non-states such as the United States and Israel.”

Stanford’s Hakimi said the court “had to deal with a certain amount of politics and needed the support of the international community”. However, spending limits and other legal considerations played a role in the decision.

“It seems that the prosecution has decided to focus on the actors responsible for most of the crimes and for the most brutal violations in the matter,” said Hakimi.

The investigation will take years and some perpetrators will likely try to disregard an ICC charge if or when it comes. Given these hurdles, analysts believe that the perceived success of the investigation will depend largely on the ICC’s ability to spend time in Afghanistan – with the approval of the Taliban – and to convey its unfamiliar process to a disaffected local population.

https://www.aljazeera.com/news/2021/11/4/analysis-can-the-icc-deliver-justice-in-afghanistan