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The International Criminal Court in Afghanistan

Djeyhoun Ostowar, December 23, 2013

In the debate on justice in Afghanistan, the role of the International Criminal Court (ICC) has received a relatively marginal place. 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 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—dating back to 1978—could still be done. However, the comprehensive and ambitious Transitional Justice Action Plan 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 international community's now imminent drawdown of military and political engagement after 2014, the ICC has become one of the very few serious justice options still available in Afghanistan.

Afghanistan is currently at only the preliminary investigation stage at the ICC, where it has been for more than six years. At some point in the near future it will have to be decided whether formal investigations should start. The potential involvement of the ICC in Afghanistan faces many challenges, and it is important to be realistic about what the ICC can achieve in terms of justice and accountability in this country. First there is the temporal limitation of addressing only the crimes committed from May 1, 2003 (the starting date of the ICC's jurisdiction on the territory of Afghanistan). There is also the question of who will be responsible for 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 United States, has shown openness to the idea of delivering citizens at an international court. Washington still does not recognize the jurisdiction of the ICC and even has a controversial law dubbed The Hague Invasion Act, under which U.S. forces would 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. Additionally, there is a multitude of other legal and practical challenges associated with investigating specific crimes within an ongoing conflict, such as dealing with "command responsibility" and "proportionality" in military operations.

These challenges aside, the ICC option is still worth pursuing. Rahim Kanani warned against "the inevitable political ramifications" of an ICC investigation. "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, the ICC has never opened investigations without political controversy; nor is controversy sufficient reason for opposing the involvement of the ICC. In the situations of Northern Uganda and Sudan, the ICC was not able to count on cooperation in terms of arresting and delivering the indictees. Even with predecessors of the ICC, in particular the International Criminal Tribunal for the Former Yugoslavia (ICTY), the apprehension of indictees was a major difficulty from the outset. The ICTY persistently continued its work until political realities on the ground and the attitudes of international actors changed in favor of the court, eventually paving the way for the arrests and prosecution of top indictees such as Milosevic, Karadzic and Mladic.

Some are concerned about the effects that an ICC operation could have on peace and order in Afghanistan. The involvement of the ICC could cause the United States to further disengage 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, many of the actors who could potentially be sought in connection with war crimes are stronger now than they were around 2001 and 2002. Some of those once labeled as warlords now enjoy various positions of power and influence. Furthermore, the Afghan government and international mediators are currently working to reach some sort of peace or political agreement with the Taliban. The threat of an ICC trial could disincentivize actors from considering a political settlement and instead encourage them to seek violent resistance.

In the report on Preliminary Examination Activities published last month, the ICC concludes that "war crimes and crimes against humanity were and continue to be committed in Afghanistan" and that these crimes fall within the jurisdiction of the Court. The ICC looked at the responsibility of anti-government forces (read the Taliban and affiliated armed groups), pro-government forces and international forces. The investigation can now expand to look at admissibility issues, a critical phase where the ICC will look at the state 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, the final phase of preliminary investigations will embark, in which the ICC will assess the complicated question of "the interest of justice."

The ICC could have a clearly positive role. As the Afghan domestic accountability mechanisms are extremely weak, the ICC could act as a deterrent against further violations. The deterrence effect will largely depend on the credibility of the ICC in terms of prosecution and enforcement as well as the support it receives from national and international actors.

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