Will ICC investigate war crimes in Afghanistan?

The question whether an investigation by the ICC is going to be opened depends on the decision of the Chamber which is expected to come out by April 2020.

On December 04-06, 2019, the Appeals Chamber of the International Criminal Court (ICC) held a hearing to listen to oral arguments in the appeals of Afghan victims and of the Prosecutor against Pre-Trial Chamber II’s “Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Islamic Republic of Afghanistan”. The representatives of victims and judges appeared in the sessions of hearings to discuss whether an investigation into situation of Afghanistan should be authorized by the ICC or not. A panel of five judges listened to the arguments submitted by the representatives of Afghan victims. Fergal Gaynor, legal representative for 82 Afghan victims, presented his arguments before the panel of judges at the ICC.  He called on the ICC to act upon its mandate and authorize an investigation into the case of Afghanistan.

The Afghan government also made a submission. Transitional Justice Coordination Group (TJCG), a coalition of Afghan rights group and non-government organizations, too, submitted their legal agreements and called on the judges to listen to voices of Afghan victims and authorize an immediate investigation into situation in Afghanistan where war crimes and crime against humanity have been committed by all warring parties.

What does ICC’s mandate stand for?

Founded on July 17, 1998, the International Criminal Court was mandated to try individuals, community charged with gravest war crime and crimes against humanity. The ICC is also mandated to investigate crimes of genocide and aggression and bring perpetrators to justice. The ICC, the first international court against crime, is duty-bound to fight against impunity and bring the perpetrators to justice. The Court acts in the light of the Rome Statute, a treaty ratified by 60 states in 2002.

Afghan victims’ argument

The three representatives of Afghan victims challenged the Afghan government’s position during the hearings. Mr. Fergal, a law expert and professor who led the Afghan representative panel, said based on findings sever crimes have been committed in Afghanistan and the Afghan national judicial intuitions are neither able nor willing to investigate war crimes committed in the country and try individuals or groups who perpetrated war crimes and crime against humanity. The call by the representative of Afghan victims came while in April of this year the ICC’s Pre-Trial Chamber rejected investigation of war crimes committed in Afghanistan. Many participants in the court room, however, were saying that war crimes have been perpetrated by the warring parties and strongmen in Afghanistan, and the ICC should authorize in immediate investigation into situation in Afghanistan.

‘Interest of justice’ or sacrifice of justice

In its 21-year history for the first time the International Criminal Court used the term ‘interest of justice’ on the appeal of Afghanistan to reject opening investigation in the country. Based on ICC’s Pre-Trial Chamber decision an investigation into the situation of Afghanistan would not serve ‘the interest of justice’. Previously, the Pre-Trial Chamber stated that any investigation into Afghanistan’s situation would both harm the alleged Afghan victims and the Court’s status at this stage.  

On April 12, 2019, Pre-Trial Chamber of the ICC rejected the request of the Prosecutor to proceed with an investigation on alleged crimes against humanity and war crimes committed on the territory of Afghanistan.

The term ‘interest of justice’, though has not been defined by the ICC, has raised controversial arguments. Afghan rights activists, who were present in the court room of hearings, would repeatedly say that the term ‘interest of justice’ is a escapeway used by the ICC to turn a blind eye on what is happening in Afghanistan, where warring parties have committed sever crimes against humanity and war crimes. They underlined that ICC’s rejection to open investigation into situation in Afghanistan would not only undermine ICC’s legal mandate and status but also sacrifice justice.


Fergal Gaynor, legal representative for 82 Afghan victims, presenting legal arguments before the panel of judges at the ICC

Afghanistan’s submission

Ratified the Rome Statute in 2003, the government of Afghanistan made a submission during the hearing. The representatives of the Afghan government, in a submission to the ICC, underlined that as the Afghan judicial institutions can investigate and prosecute cases of war crimes and there is no need for the ICC to intervene into situation in Afghanistan. They said the Afghan national justice institution had already opened investigating case of war crime perpetrated in Paktia province.

The submission by the Afghan government comes while a UN report, published in October of this year, said 1,174 civilians were killed and 3,139 wounded in Afghanistan from July to September this year.

The dark side of Afghan war

Decades of war in Afghanistan—having devastated the country’s infrastructures—have taken hundreds of thousands of Afghan lives. Documented report by Human Rights Watch (HRW) said Afghan paramilitary forces, backed by CIA, have “committed summary executions and other grave abuses without accountability”. HRW called on the Afghan government to take immediate action against executions of the ordinary Afghans in the hand of pro-government paramilitary forces.

Extrajudicial killings, human abuses, attacks on civilians and forced disappearances have been an inseparable part of Afghan war in the last 18 years. Report by rights group have documented dozens of cases which show grave abuses, backed by CIA, have been committed during night raids, something the US government has denied, calling it ‘false’.   

After the December hearing held at ICC to hear legal arguments of the Afghan victims, the Appeals Chamber of the International Criminal Court are now going to decide whether the Court will authorize an investigation on war crimes and human abuses allegedly committed in Afghanistan or not. The question whether an investigation by the ICC is going to be opened depends on the decision of the Chamber which is expected to come out by April 2020.