Afghanistan, which had faced several periods of civil war since the 1970s, again experienced over a decade of conflict following the United States-led invasion of the country after attacks on 11 September 2001. In 2007, the ICC prosecutor announced a preliminary examination to determine whether conduct by Afghan and foreign government forces, as well as anti-government forces such as the Taliban, after 1 May 2003 may amount to war crimes and crimes against humanity.
The ICC Office of the Prosecutor (OTP) made the preliminary examination into the situation in Afghanistan public in 2007. In one of the longest running OTP preliminary examinations, the prosecutor has looked into alleged crimes against humanity and war crimes committed on Afghan territory after 1 May 2003.
The OTP has found a reasonable basis to believe that war crimes and crimes against humanity were and continue to be committed by members of Afghan and foreign government forces, and by anti-government forces such as the Taliban. The ICC prosecutor is assessing whether genuine national criminal proceedings exist to address these crimes before developing any cases to bring before the ICC.
The ICC admissibility assessment not only looks at criminal proceedings in Afghanistan, but also in the United States and by other NATO states suspected of sanctioning unlawful conduct as laid out in the Rome Statute. There has been little evidence of meaningful national prosecutions according to civil society.
The OTP meanwhile continues to examine new alleged Rome Statute crimes in Afghanistan.
Afghanistan acceded to the Rome Statute in 2003 and has largely cooperated with the OTP preliminary examination on its territory. Civil society, however, remains concerned about the possible role of the US and other occupying forces to influence the scope of Afghanistan’s cooperation with the ICC.
Afghanistan’s obligation as an ICC member state to cooperate includes cooperation with the OTP examination of conduct – including alleged detainee abuse – by Afghanistan’s international partners in the US-led invasion and occupation of Afghanistan after 1 May 2003.
In a recent positive show of cooperation, the second vice president of Afghanistan made a statement in 2016 welcoming an ICC visit to Afghanistan. The government also announced the creation of a technical committee of government officials and the Afghanistan Independent Human Rights Commission (AIHRC) to broker cooperation with the ICC.
Despite its obligations as an ICC member state, Afghanistan has not updated its 1976 Criminal Code to cover international crimes, which has frustrated domestic efforts to deliver justice to victims of gross human rights violations.
At the request of the Afghan government, AIHRC charted an “Action Plan for Peace, Reconciliation and Justice in Afghanistan”, launched by President Hamid Karzai in 2006, to instruct that the commission of war crimes, crimes against humanity, or obvious human rights violations “does not fall into the scope of amnesty on the basis of the principles of the sacred religion of Islam and internationally accepted standards.”
Contrary to the Action Plan, the 2007 “Law on Public Amnesty and National Stability” granted legal immunity to “all political parties and belligerent groups who fought each other during the past two and a half decades”, without any temporal limit to the law’s application or any exception in the case of international crimes.
The move, viewed as a violation of the fundamental right to redress for victims of gross human rights violations, spurred a vehement reaction from national and international NGOs, including concerns about Afghanistan’s willingness and the ability of the Afghan legal order to put an end to impunity.
Only one high-ranking member of an armed group has been put on trial in Afghanistan, for crimes committed in 1992-93 – prior to the passing of the amnesty law, but also prior to ICC jurisdiction. The government has launched only a limited number of proceedings against its own alleged perpetrators, such as two officials from the National Directorate of Security.
Allegations of detainee abuse by US forces have resulted in one conviction – of a former Central Intelligence Agency independent contractor – and the court-martialing of a few dozen members of the military. Considering that these individuals were deemed responsible for isolated incidences of cruelty towards Afghan prisoners, civil society has alleged that the United States has not genuinely carried out an investigation.
Regarding the October 2015 aerial bombardment of a Médecins Sans Frontières hospital in Kunduz by US armed forces, a NATO investigation concluded that the bombardment resulted from human error. The only outcome was the suspension of the individuals most closely associated with the incident.
Local civil society groups in Afghanistan have played a pivotal role in advocating for victims’ concerns and issues of justice and accountability to be included in Afghanistan’s transitional justice process.
In March 2005, the Afghan government appointed an inter-ministerial Commission with senior representatives from the ministries of foreign affairs, justice, and the interior; from the Supreme Court; from the University of Kabul; and from the civil society organization Afghan Professional Alliance for Minority Rights. The goal of the Commission was to evaluate and determine steps toward implementation of the Rome Statute into national laws.
During a March 2006 roundtable, the Commission expanded its membership to other actors, including civil society organizations. The Afghanistan Independent Human Rights Commission prepared a preliminary draft on ICC implementing legislation, which received feedback from various actors and was then presented to the Ministry of Justice, where it has remained since 2007.
According to local Coalition members, there have been no implementation developments since 2007.
Civil society in Afghanistan and the Middle East have worked with the Coalition for the ICC in translating key documents, facilitating discussions with the government, and raising awareness of the significance of ICC activities in the country. These efforts have been key in laying the groundwork for Afghan leaders and the general public to engage in serious debates on the role of justice and the importance of an inclusive peace process.