An Urgent Need for Justice: Expediting the International Criminal Court’s Afghanistan Investigation

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Given the Taliban’s atrocities, past and present, there’s an urgent need for the ICC to move more quickly in the pursuit of justice.

After retaking control of Afghanistan on August 15 of last year, the Taliban, one of the main perpetrators of past major atrocities in Afghanistan, allegedly continue to commit war crimes and crimes against humanity. With the legitimate Afghan government gone, it is time for the International Criminal Court (ICC), as the only available international body with jurisdiction over the alleged crimes, to act swiftly and responsibly and make a difference by expediting its intervention in Afghanistan.

The Taliban’s International Crimes, Past and Present

The Taliban and its affiliate terrorist groups such as the Haqqani Network have been accused of committing heinous war crimes and crimes against humanity over the last 20 years. They have indiscriminately targeted civilians, causing some of the most tragic events in Afghanistan. Besides international forces and the former government’s national security forces, the Taliban has been accused of carrying out major war crimes and crimes against humanity prior to taking control of the country.

According to a decision of the ICC”s Pre-Trial Chamber II, some examples of the Taliban’s alleged crimes against humanity include “the crimes of murder, imprisonment or other severe deprivation of physical liberty and persecution on political and gender grounds.” The ICC also lists a number of war crimes that were committed by the Taliban, such as “intentionally directing attacks against the civilian population, humanitarian personnel and protected objects; conscripting or enlisting children under the age of 15 years or using them to participate actively in hostilities; and killing or wounding treacherously a combatant adversary.” In addition to the ICC’s documents, many national and international organizations, including the United Nations Assistance Mission in Afghanistan (UNAMA), have investigated and documented atrocities committed by the Taliban.

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Since the collapse of the Afghan government, the Taliban claim that they have offered a general amnesty to everyone, but the reality on the ground shows the opposite. It would seem the Taliban intended the announcement of a general amnesty as a duplicitous strategy to receive recognition from the international community and other countries, without any intention of complying. Several reports indicate that the Taliban have been perpetrating crimes against humanity and war crimes more frequently and on a larger scale than ever.

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While the Taliban have severely stifled free media by issuing extremely restrictive orders, and threatening, beating, or chasing down journalists, reports emerging from Afghanistan nonetheless carry very disturbing news. For instance, it’s been reported that the Taliban hunted down, arrested, tortured, or summarily killed numerous members of the former Afghan national security forces after its statement about a general amnesty. Afghan social media is full of videos and photos showing the Taliban torturing, arresting, or killing civilians, protesters, dissidents, singers, artists, women, former Afghan military personnel, former government officials, and Afghans who worked with foreign organizations.

Due to the Taliban’s brutal efforts to silence people, it is very difficult to ascertain the depth and breadth of their crimes. At the tip of the iceberg, according to Amnesty International, when the Taliban took control of Ghazni province last July, they massacred nine members of the Hazara ethnic group and tortured many more. More recently, the Taliban conducted night raids and broke into the homes of Afghan women activists in Kabul in the middle of the night and took them to an unknown location. The whereabouts of the abducted activists are still unclear.

Among other instances of heinous conduct, the Taliban have severely restricted women from education, work, or being seen in public life, and have brutally suppressed women’s demonstrations in Kabul and other provinces since taking power. Only a woman under the Taliban regime can fully understand and feel the unbearable suffering of women inflicted by the Taliban. Some legal scholars persuasively argue that gender-based discrimination against women can fall under the “persecution” definition and thus qualify as a crime against humanity under the Rome Statute.

No Rule of Law and Hope for Justice Under the Taliban Regime

It is not an overstatement to say that Afghanistan is now controlled by the Haqqani Network, a notorious terrorist organization accused of indiscriminately attacking and murdering innocents by suicide bombings and other attacks for many years. When the leader of the Haqqani Network, Serajuddin Haqqani (who has been designated a terrorist by the United States, which has placed a $10 million bounty on him), currently runs the Interior Ministry. Haqqani members serve as police officers.

Under the current situation, there is neither law and order nor courts, rule of law, due process, accountability, and effective command and control over Taliban militias. Every Taliban member can take the law into his own hands and do whatever he wants. It would be inane and unrealistic to expect the perpetrators to prosecute and hold themselves accountable for the crimes they themselves have committed. Unfortunately, the long-standing culture of impunity in Afghanistan has not only been perpetuated but has emboldened the Taliban to continue their atrocities without any fear of legal repercussions. Consequently, it would be completely irresponsible to expect the Taliban regime to miraculously change overnight and ensure justice and accountability for victims of their own crimes.

The ICC Jurisdiction and Its Activities in Afghanistan

The ICC’s jurisdiction is established in Afghanistan based on the principle of complementarity. After over a decade of the preliminary examination, on March 5, 2020, the Appeals Chamber of the ICC finally authorized the Office of the Prosecutor (OTP) to begin an investigation in Afghanistan. However, on March 26, 2020, the ICC received a request from the then-government of Afghanistan to defer the investigation to Afghan authorities. The ICC granted the Afghan government’s request.

After the collapse of the Afghan government, as the latest move, the OTP announced that it would proceed with investigating the alleged international crimes, giving priority to the atrocities committed by the Taliban and the Islamic State. The OTP identified “the gravity, scale and continuing nature of alleged crimes by the Taliban and the Islamic State” as major reasons for this prioritization.

Despite this positive move, there is no indication that the ICC has made any substantial progress in resuming its investigation since the announcement. The slow reaction of the ICC regarding the unfolding situation in Afghanistan has been discouraging.

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The Urgent Need for the ICC to Accelerate Its Investigation

Now that the legitimate Afghan government is gone, the ICC remains the sole responsible and impartial institution able to investigate and prosecute the alleged international crimes that have occurred or are still occurring within the territory of Afghanistan, dating back to May 1, 2003. The ICC’s recent announcement that it would resume the investigation is a positive step. However, the current extraordinary situation in Afghanistan requires the ICC to take swifter and more aggressive action.

The ICC’s resource constraints, dependence on the cooperation of state parties, and lengthiness and complexity of legal procedures are well-known to scholars, practitioners, and victims. Given the challenges, it is unrealistic to have high expectations of the court and anticipate an immediate arrest and prosecution of the alleged perpetrators. At the same time, it is irresponsible to not take actions that may have a positive impact on the situation and restrain the Taliban’s brutal behavior at least to some extent. Even a marginal effect from swift ICC action may have a big impact on potential victims, save some lives, lessen the suffering of the people, decrease the torture of innocents, and create some hope for justice in the future.

Although it is challenging or even impossible for the ICC to have a physical presence in Afghanistan due to security concerns at present, there are many ways the ICC can mitigate this challenge. For instance, the ICC can use evidence from open sources as it did in previous cases in Libya. Also, the ICC can closely collaborate with U.N. agencies (some of which currently have a presence in the country) and many other local and international human rights organizations. Additionally, there are many victims and witnesses who were able to get out of the country and those who may be able to provide testimony through a secure virtual platform from Afghanistan.

The Likely Impacts of the ICC’s Immediate Resumption of Investigation

If the ICC demonstrates decisiveness and a strong will followed with appropriate action in fulfilling its mission to investigate and prosecute international crimes in Afghanistan, it may have some tangible impacts.

The Taliban have desperately tried to obtain recognition from the international community. The resumption of an investigation by the ICC will put extra pressure on the Taliban to respect international human rights and humanitarian law principles. It also sends a strong message to the leaders of the Taliban, who have been involved in past and current atrocities, that they will ultimately be brought to justice one day, if not today. This will hopefully create a degree of deterrence. If the ICC reaches the point where it issues arrest warrants, it will have even greater impact as this could add extra constraints on the Taliban’s leaders who are seeking recognition or trying to normalize relations with other nations. For instance, if the ICC’s investigations were in an advanced stage, the Taliban leaders, particularly the notorious Haqqani leader Anas Haqqani, would not be able to go to Norway or other ICC member states or he would arrested.

The immediate resumption of the investigation will also enable the ICC to document and record the crimes as they are happening and preserve direct evidence. So far, the ICC has largely relied on indirect evidence received from human rights organizations, national and international NGOs, and other entities in Afghanistan. The preservation of direct evidence will have an invaluable effect on the ICC’s future actions, and it will never allow the crimes to be forgotten or go unpunished.

Immediate action by the ICC will also provide hope to hundreds of victims who have been seeking justice for too long. Without ICC action, there will be no hope for justice for these victims. But if the ICC begins actively investigating, the hope for justice may finally become a reality. Moreover, the ICC investigation may help pressure the Taliban to refrain from committing further international crimes, protecting potential future victims.

Finally, a resumption of an effective investigation is the first step toward justice. Sitting and watching the Taliban continue to commit international crimes more frequently than ever without taking any appropriate actions will never help ensure the justice the ICC was established for. The resumption of the investigation of the Taliban atrocities can subsequently be expanded to include other crimes allegedly committed by the previous Afghan national security forces and international forces in the country.

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