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ICC Prosecutor authorized to resume the investigation into the situation in Afghanistan

Photo credit ICC-CPI
20 December 2022

On 31 October 2022, the Prosecutor of the International Criminal Court (ICC or the Court) was authorized to resume the investigation into the situation in Afghanistan. In their decision, judges of Pre-Trial Chamber II (PTC II) considered that “Afghanistan is not presently carrying out genuine investigations in a manner that would justify a deferral of the Court’s investigations” and “is not showing an interest to pursue the deferral request they submitted on 26 March 2020”. 

The authorisation decision by PTC II covers all alleged crimes falling within the situation and the conflict, as it existed at the time of the Appeals Chamber (AC) decision of 5 March 2020, which had authorised the Prosecutor to open an investigation.  These are crimes alleged to have been committed on the territory of Afghanistan since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation in Afghanistan and were committed on the territory of other States Parties to the Rome Statute since 1 July 2002.The preliminary examination into the situation in Afghanistan was publicly announced in 2020. More information on the timeline and context of this situation can be found below. 

 
CIVIL SOCIETY REACTIONS #NGOVoices: 

"We welcome the decision of the ICC to open an investigation into the situation of Afghanistan,” said Horia Mosadiq from the Afghanistan Transitional Justice Coordination Group (TJCG). “The Afghan war victims already waited too long, and all are hoping for the immediate start of the impartial investigation into war crimes, crimes against humanity and genocide that were committed in the territory of Afghanistan among other gross human rights violations. Afghans are putting their faith into the ICC as a last resort to end the decades long impunity and holding the perpetrators to account." You can read the press release by the TJCG here.  

“The Afghanistan Organization for Development of Human Rights (AODHR) strongly welcomes and appreciates this decision,” said Daoud Ali Najafi, Director of AODHR. “We hope that the investigation starts as soon as possible in Afghanistan and wish this decision had been taken long time back, especially after March 2003 when Afghanistan officially endorsed the ICC statute and became the first Asian country and second Muslim country in the Assembly of States Parties." You can read the full statement here. 

“The International Criminal Court’s decision this week restores some hope for long-awaited justice in Afghanistan, particularly for victims of crimes committed by the Taliban and their affiliated Haqqani Network,” said Amnesty International. “The ICC Prosecutor should seize this opportunity to urgently commence investigations into all parties to the conflict.” Read Amnesty International’s full statement here.  

 

“The ICC offers a rare opportunity to advance justice in a country where accountability is completely absent,” said Patricia Gossman, associate Asia director at Human Rights Watch. “This investigation needs to address serious crimes by all sides to the conflict, including US forces, to bring justice even when the most powerful nations are involved.” You can read the full press release issued by Human Rights Watch here.  

 

The International Federation for Human Rights (FIDH) and its member organisations OPEN ASIA | Armanshahr and the Center for Constitutional Rights (CCR) welcomed the ICC decision. “Our organisations urge the Prosecutor to dedicate sufficient resources to a complete investigation without delay, and strongly call for more effective outreach to affected communities and meaningful victim participation throughout the proceedings,” reads their statement. 
 

 

BACKGROUND: 

Afghanistan is a State Party to the Rome Statute since 10 February 2003. The ICC can exercise jurisdiction over Rome Statute crimes committed on the territory of Afghanistan or by its nationals from 1 May 2003 onwards. 

In 2007, the ICC Prosecutor, then Fatou Bensouda publicly announced a preliminary examination into the situation in Afghanistan.  

On 20 November 2017, then-Prosecutor Bensouda made a request to the judges of PTC II to open an investigation into alleged crimes within the jurisdiction of the Court on the territory of Afghanistan, which was rejected on 12 April 2019.  In their decision, the judges of PTC II considered that the legal criteria of jurisdiction and admissibility were met but concluded that an investigation “would not serve the interests of justice.” The Prosecutor appealed the decision.  

On 5 March 2020, in a unanimous decision, the ICC’s Appeals Chamber reversed the Pre-Trial Chamber II decision and authorised the Office of the Prosecutor to commence investigations in relation to the situation in Afghanistan. The Appeals Chamber authorized the Prosecutor to “investigate the crimes alleged to have been committed on the territory of Afghanistan since 1 May 2003, as well as other alleged crimes that had a nexus to the armed conflict in Afghanistan and were sufficiently linked to the situation in Afghanistan and were committed on the territory of other States Parties to the Rome Statute since 1 July 2002.” 

On 26 March 2020, the Government of Afghanistan requested the Prosecutor to defer the investigation into the situation to the Afghan national authorities, according to article 18(2) of the Rome Statute. Article 18 allows states that are investigating or have investigated persons for crimes within the ICC's jurisdiction, to notify the Prosecution and request a deferral of the ICC's proceedings. Under the complementarity principle, the ICC only has jurisdiction when domestic jurisdictions are not able or are unwilling to carry out proceedings.  

On 27 September 2021, the Office of the Prosecutor sought the Chamber’s expedited authorisation to resume its investigation, after concluding that there was no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan. The Prosecutor explained that the investigation would focus on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (“IS-K”) and would de-prioritise certain aspects of the investigation, “cognizant of the limited resources available to my Office relative to the scale and nature of crimes within the jurisdiction of the Court that are being or have been committed in various parts of the world”.  

Following the deferral request submitted by Afghanistan, legal representatives for victims transmitted 3 applications to the Chamber via the Registry, requesting, among other things: that the Chamber order the Prosecutor to clarify the scope of the deferral request and its understanding of Article 18(2); that the Registry and Prosecution provided more outreach and information to victims; and that the Prosecutor should indicate whether it had taken steps to investigate crimes allegedly committed by nationals of countries other than Afghanistan and which were not being investigated by Afghanistan. 

The submissions by the legal representatives of victims were dismissed by the Chamber on the basis that victims had no standing as parties at this stage of proceedings and it was solely within the Prosecution's discretion to determine what information to provide to victims concerning the deferral request. Victims again petitioned the Court to intervene following the Prosecutor's request to resume investigations. In response, the Chamber reiterated its previous findings that victims have no standing but ruled that their interests were affected, and they could thus present views and concerns via the Victims Participation and Reparations Section (“VPRS”) of the Registry. According to the Registry, since the Prosecutor's application to investigate, representations have been made on behalf of 11,150 individual victims and 130 families. 

On 31 October 2022, PTC II granted the prosecutor to resume the investigation. The Judges noted that despite the 27 September 2021 statement of the OTP, the authorization applies to all crimes for which the prosecutor was originally authorized to proceed by the Appeals Chamber. Judges specified further the scope of the authorization adding that crimes that can be object of the investigation are “the crimes falling within the situation and the conflict, as it existed at the time of the decision authorising the investigation and based on the request to open it”, excluding alleged crimes unrelated to such situation and conflicts or related to any new armed conflict(s). 

On 7 November 2022, the OTP appealed the PTC's decision, indicating that it set limits on the scope of the investigation to crimes allegedly committed by the actors mentioned in the initial 2017 request to open the investigation and those alleged crimes that took place up until the authorization was granted in 2020.