The ICC’s Planned Visit to Afghanistan: Crimes, capacities and the willingness to prosecute

A delegation from the International Criminal Court (ICC) is planning to visit Afghanistan in 2016, but the government has hesitated about receiving it. It has established an inter-ministerial committee to ensure the Rome Statute, the treaty establishing the ICC, is finally translated into local languages and published in the official gazette so that the public can read it. That treaty was signed 13 years ago. The committee has also been trying to ensure the ICC will not be trying any Afghan cases. AAN’s Ehsan Qaane takes a closer look at where Afghanistan and the ICC are on prosecuting war crimes.

Afghanistan deposited its ratification of the Rome Statute on 10 February 2003 and it entered into force on 1 May 2003. Only crimes committed in Afghanistan or by Afghans after this date can be prosecuted by the ICC. Four years later, in 2007, the ICC began a preliminary examination of the situation in Afghanistan. The process has been very slow, largely because of a lack of resources – including relevant language resources – within the court. However, the Office of the Prosecutor (OTP) of the ICC did publish five preliminary examination reports between 2011 and 2015. The first three, published between 2011 and 2013, focus largely on whether crimes falling under the ICC’s jurisdiction, namely war crimes, crimes against humanity and genocide had been committed in Afghanistan. The last two reports (2014 and 2015) focus mainly on questions of admissibility – at whether crimes are grave enough for the ICC to be involved, whether crimes are being tackled by Afghanistan’s own judiciary and whether it would be in ‘the interests of justice’ for an ICC intervention (find the reports here).

The Rome Statute, crimes and Afghanistan

The findings of the Situation Analysis Section of the Office of the Prosecutor, published in the preliminary examination reports, show that two types of crimes against humanity and seven types of war crimes have been committed in Afghanistan since 1 May 2003:

• Murder, as a war crime under article 8(2)(c)(i) and as a crime against humanity under article 7 (1) (a) of the Statute;
• Imprisonment or other severe deprivation of physical liberty in violation of the fundamental rules of international law as a crime against humanity under article 7 (1) (e) of the Statute;
• Cruel treatment under article 8(2)(c) (i) or outrages upon personal dignity as a war crime under article 8(2)(c)(ii);
• The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court as a war crime under article 8(2)(c)(iv);
• Intentionally directing attacks against personnel, materials, units or vehicles involved in humanitarian assistance as a war crime under article 8(2)(e)(iii);
• Intentionally directing attacks against buildings dedicated to education, cultural objects, places of worship and similar institutions as a war crime under article 8(2)(e)(vii);
• Conscripting or enlisting children under the age of fifteen years of age into armed forces or groups or using them to participate actively in hostilities as a war crime under article 8(2)(e)(vii); and
• Treacherously killing or wounding a combatant adversary as a war crime under article 8(2) (e) (ix).

A closer look at the crimes and alleged criminals

The ICC can only prosecute individuals, not institutions, as article 25 of the Rome Statute states:

“The Court shall have jurisdiction over natural person pursuant to this Statute. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.”

Indeed, during the preliminary examination stage, the Office of the Prosecutor analyses the available information regarding a situation (or a case) to determine whether there is any “reasonable basis” (article 15, Rome Statute) to launch an investigation into an alleged crime. The Office of the Prosecutor is not tasked with attributing alleged crimes to any individual at this stage. For example, in Afghanistan’s case, the Office of the Prosecutor reports have so far only attributed potential crimes to parties of the conflict, which it sees as:

1) Pro-government forces that include Afghan National Security Forces (ANSF) and their international partners under the umbrella of ISAF, and, more recently, the Resolute Support Mission (RSM).

2) Anti-government forces such as the Taleban, the Haqqani network and Hezb-e Islami (led by Gulbuddin Hekmatyar).

Anti-government forces are accused of all nine of the crimes mentioned above. Pro-government forces have been accused of torture, only. The Office of the Prosecutor singled out the Afghan National Police (ANP) and the National Directorate of Security (NDS) (see here), as well as the CIA and the US military.

The ICC examined the killing and wounding of civilians by pro-government forces, but the Office of the Prosecutor said it could not attribute the crime of murder to them:

The information available does not indicate that civilian deaths or injuries caused by air strikes launched by pro-government forces, as well as escalation-of-force incidents and “night raids”, resulted from the intentional directing of attacks against the civilian population. Accordingly, the information available does not provide a reasonable basis to believe that the war crime of intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities pursuant to article 8(2)(e)(i) has been committed by pro-government forces.

Assessment of admissibility

In order for cases to be admissible for the ICC they need to meet three conditions (Rome statute: see here, articles 17 and 53). Two of these, the Office of the Prosecutor believes, have been fulfilled in the case of Afghanistan and it is looking into the third:

• The gravity threshold

According to available information in public sources and 112 communications which the ICC has directly received from victims and other individuals and organizations, the Office of the Prosecutor confirmed the seriousness and widespread nature of the nine above-mentioned crimes:

Between 2007 and 2014, approximately 37,000 civilian casualties (14,700 deaths and 22,300 injuries) have been attributed to anti-government armed groups, primarily from their use of improvised explosive devices. Many alleged crimes were committed with the aim to terrorise and spread fear among the local civilian population, as a means of control… There are an estimated 5,000 conflict-related detainees in Afghan government custody. The manner in which the crimes are alleged to have been committed appears particularly gruesome and was seemingly calculated to inflict maximum pain. The alleged crimes had served short-term and long-term impacts on detainees’ physical and mental health, including permanent physical injuries. (Related to international forces in particular to USA forces) The information available suggests that victims were deliberately subjected to physical and psychological violence, and that crimes were allegedly committed with particular cruelty and in a manner that debased the basic human dignity of the victims.

• No national prosecution: government unable and/or unwilling

Once a crime covered by Article 5 of the Statute – namely genocide, a war crime or crime against humanity – has been determined as having been serious or widespread in nature, there is no impunity and the most responsible perpetrator(s) must be prosecuted either by a national court or by the ICC. The ICC has complementary jurisdiction over these crimes. This means the country’s judiciary is authorised to address these crimes first. However, if it is unable or unwilling to do so, then the ICC can claim jurisdiction. A member state can transfer its jurisdiction to the ICC by requesting its intervention; alternatively, the ICC can initiate, by proprio motu (Latin for ‘own initiative’), jurisdiction if a member state is unable or unwilling to prosecute the alleged crime (article 13, Rome Statute). The Office of the Prosecutor must establish the unwillingness or inability of the Afghan government to prosecute these crimes before the ICC can launch an investigation.

So far, Afghanistan has not referred any cases to the ICC. Neither have the five preliminary examination reports cited any of the perpetrators of the most serious crimes as having been tried by either a national court or by one of the country’s international partners providing military support to the Afghan government. Only a few cases of torture have been looked into by national courts, but these were mostly administrative enquires rather than criminal proceedings, or considered only lower-level alleged perpetrators; none of the main perpetrator(s) have been subject to investigation.

The Government [of Afghanistan] has instituted only a limited number of proceeding against alleged perpetrators (see here). Despite the scale of alleged ill-treatment in NDS and ANP detention facilities (an estimated 35-51% of conflict-related detainees according to the finding of UNAMA’s detention monitoring program (see here), information provided by the government of Afghanistan to UNAMA indicates that to date the Government has prosecuted only two NDS officials (in relation to one incident), and no ANP officials, for this conduct.

In its fifth report, published in 2015, the Office of the Prosecutor discussed Afghanistan’s Amnesty Bill (see AAN’s Transitional Justice paper), which the Afghan parliament passed in 2007. The Office of the Prosecutor identified this law as a sign of unwillingness on the part of the government to prosecute war crimes or crimes against humanity committed by anti-government forces, notably by former warlords or insurgents who put down their weapons and joined the government after 1 May 2003.

The Law on Public Amnesty and National Stability provides legal immunity to all belligerent parties including those individuals and groups who are still in opposition to the Islamic State [sic] of Afghanistan, without any temporal limitation to the Law’s application or any exception for international crimes (see here).

Additionally, crimes covered by the Rome Statute have not been criminalized by the Afghan government and the country’s judiciary organs are incapable of addressing these complicated types of crime.

The example of Sarwari, former head of KhAD

An example of the Afghan judiciary’s inability to try crimes that fall under the Rome Statute is the case of Asadullah Sarwari, head of the intelligence service directorate (KhAD) during the communist PDPA regime. He was arrested on 26 May 1992 by the mujahedin who had just captured Kabul and accused of ‘plotting against the mujahedin government’. He was tried, however, only in 2005. A judge familiar with the trial said Sarwari was accused of crimes against humanity and war crimes, but as these had never been criminalised under Afghan law, he was tried according to article 130 of the Afghan constitution, which refers to the Hanafi Sharia law of Islam (anyway, when Sarwari committed his crimes, Afghanistan had not signed the Rome Statute so they were outside its temporal jurisdiction). Sarwari was found guilty, but of what crime exactly still remains unclear.

Sarwari’s case also demonstrated how far Afghanistan’s judges are influenced by powerful people. One of the plaintiffs in the case was Sebghatullah Mujaddedi, mujahedin factional leader and president of the first post-PDPA, mujahedin government in 1992, and still a prominent figure. Members of his family were forcibly disappeared or killed by KhAD under Sarwari. According to one of the case judges, Mujaddedi has rejected all punishments for Sarwari except capital punishment. However, the evidence against Sarwari is not strong enough to merit capital punishment. The standoff has led to the case never being resolved. After almost eleven years, it is still ongoing even though the Afghan Criminal Procedural Code states that proceedings may not take longer than eleven months in total. It is also unclear at which stage the case is at the moment.

Another challenge for the Afghan judiciary when trying members of insurgent groups such as the Taleban, is their vulnerability to retribution. Judges and prosecutors are often targeted by insurgents, which, of course, impacts their willingness and ability to try war crimes. After the execution of six convicted terrorists in May 2016, for example (five Taleban, including two members of the Haqqani network, and one member of al Qaeda (see AAN reporting here)), the Taleban threatened the judges and prosecutors. They then followed up with three attacks on Afghan courts and members of the judiciary: against the personnel of the Maidan Wardak Appeals Court on 31 May, against the Ghazni Appeals Court on 1 June and against the Logar Appeals Court on 5 June 2016. During these attacks, a total of 22 civilians, at least half of them judges and prosecutors, were killed and 37 other civilians were wounded.

• The ‘interests of justice’

The third issue considered by the Office of the Prosecutor is whether an ICC intervention would serve justice. According to articles 17 and 53 of the Rome Statute, an intervention in Afghanistan would have to be supported by the victims of the alleged crimes. Although none of the five published reports has said anything about the willingness of victims to have their cases prosecuted, the last report said information to this end is in the process of being gathered and analysed. In the same paragraph, it is also stated that Afghanistan is at a stage where it could turn to the Pre-Trial Chamber, the body in charge of resolving all issues arising before a trial phase can begin which supervises the Office of the Prosecutor in its investigatory and prosecutorial activities. The Office of the Prosecutor must gain authorization to open an investigation. It could now request this as its findings show war crimes and crimes against humanity have been committed and there has not been prosecution of alleged criminals by national courts.

The Office [of the Prosecutor] will also continue to gather information relevant to the assessment of whether there are substantial reasons to believe that an investigation would not serve the interests of justice prior to making a decision on whether to seek authorization from the Pre-Trial Chamber to open such an investigation of the situation in Afghanistan.

According to articles 15 and 57, once the Office of the Prosecutor feels there is a “reasonable basis” to warrant belief that crime(s) covered in the Statute have been committed and the ICC has admissibility to investigate, the Office must request the Pre-Trial Chamber for authorization to open an investigation into the case.

In the last report issued in December 2015, the Office of the Prosecutor mentioned that, following a decision taken in October that year, it intended to send a delegation to Afghanistan to conduct admissibility assessments. The report said the trip had not yet taken place due to, “the non-permissive situation in the country.” According to information AAN received from a source within the Office of the Prosecutor, the ICC asked the government of Afghanistan to issue visas for the members of this delegation, but that this had been delayed – reportedly, because the government wanted time to prepare for the visit and to define its strategy for interacting with the ICC delegation once it arrived in Kabul.

The inter-ministerial committee prepares for the ICC visit

The National Security Council (NSC) decided in January 2016 to establish a high-level, inter-ministerial committee, led by Second Vice-President Sarwar Danish, (1) to investigated the purpose of the ICC visit and prepare for it. It was to consult with international partners who provided military support regarding their position on the ICC request to send a delegation. Apart from defining its strategy for working with the ICC, the committee had two further tasks: first, the translation of the Rome Statute into the local languages, Dari and Pashto, and publication of the translated law in the official gazette and; second, collect all cases relevant to the Rome Statute (if any) that Afghanistan had prosecuted (see here). The inter-ministerial committee established a technical sub-committee consisting of qualified, mid-level officials which had six months (January to June 2016) to carry out these four tasks, at which point they must submit their findings and recommendations for review and approval to the inter-ministerial committee. The technical sub-committee has almost completed its tasks (see below) and is expected to submit its findings to the committee soon.

Cases prosecuted in Afghanistan

A member of the technical committee, who asked not to be named, told AAN on 1 June 2016 that the purpose of collecting information on cases relevant to the Rome Statute that have been prosecuted in Afghanistan was “to show to the ICC the willingness of Afghanistan to prosecute the alleged crimes, which are under cover of the Rome Statute.” He added that it was “impossible to develop the capacity of the Afghan judicial organs in one night, but still we can show our willingness.” His point was that the government is trying to convince the ICC that it is indeed willing, but that the national judiciary have lacked the capacity to effectively address crimes falling under the Rome Statute.

Of the three bodies involved (Attorney General’s Office, Ministry of Interior and Supreme Court), only the Attorney General’s Office has presented a list of cases. It compiled a list of 54 cases of torture (including conflict-related and non-conflict related detainees and prisoners’ cases), based on the work of a special governmental committee that had been established by President Karzai in 2013 as part of the verification of a UNAMA report. The report, published on 22 January 2013, claimed torture had taken place in Afghan detention centres (see the report here). (See AAN reporting here and here. According to a source from the technical committee who spoke to AAN on 30 May 2016, only two out of the 54 cases have been investigated by the Attorney General’s Office, so far. The same source confirmed that the Supreme Court had submitted a letter to the technical sub-committee stating that it could find no cases related to the Rome Statute. The Ministry of Interior has shared no information to date.

Translation and publication of the Rome Statute

13 years after it went into effect in Afghanistan, the Ministry of Foreign Affairs finally translated the Rome Statute into Dari and Pashto and, on 30 May 2016, sent it to the Ministry of Justice to have it published in the official gazette. This was only decided by the inter-ministerial committee on 23 January 2016. According to the current Afghan constitution, any international treaty or agreement signed by Afghanistan has to be published in the official gazette following approval by the parliament, with the documents being translated into Dari and Pashto. Technically, the Afghan government was obliged to publish the Rome Statute in 2004 at the latest. However, the statute was signed before the current constitution was approved by the Constitutional Loya Jirga on 13 December 2003, so, at the time of signing, it did not require the approval of parliament (which had not yet been established). Nonetheless, it should still have since been translated and published.

Due to the lack of a translated version of the Rome Statute in local languages, even one of the nine Supreme Court judges and the then-acting head of the Attorney General’s Office, Habib Jalal, (this was before Farid Hamidi’s appointment as Attorney General on 7 March 2016) had been unaware of Afghanistan’s ICC membership (this, according to a source at the NSC whom AAN spoke to May 2016, Habib Jalal). In fact, according to a source in the technical sub-committee, one of the reasons for creating the inter-ministerial committee prior to issuing visas to the ICC delegation was to give information to relevant officials about Afghanistan’s obligations under the Rome Statue.

What were the responses of Afghanistan’s international partners?

Once the ICC announced its intention to visit Afghanistan, the Ministry of Foreign Affairs asked NATO members involved in Afghanistan about the nature of their relationship with the ICC. Feedback, including that from the US, was overall positive, a source in the Ministry of Foreign Affairs told AAN. However, when the US and Afghanistan signed the Bilateral Security Agreement (see AAN’s analysis on BSA here), as when it signed the earlier Status of Forces Agreement (2003), (2) Kabul agreed neither to prosecute American soldiers, nor hand them over to a third party for the prosecution of war crimes.

Article 98 of the Statute states that a member state is not responsible for arresting or transferring foreign suspects whose country of origin the member state has an international agreement with banning such an arrest or transfer (3). In other words, Kabul is not bound to violate the 2015 Bilateral Security Agreement (BSA) and hand over any US national accused of war crimes to the ICC. However, the ICC can still prosecute US soldiers for alleged crimes committed on Afghan territory after 1 May 2003, despite the BSA and the fact that the US is not a member of the ICC. The ICC can still request the US or any of the ICC’s State Parties to arrest perpetrators who are suspected of committing war crimes or crimes against humanity, and send them to the ICC detention centre in The Hague.

Developing the regulation for the implementation of the Rome Statute

Part Nine of the Rome Statute, International Cooperation and Judicial Assistance, states that state parties must assist the ICC in any way and at any stage of the investigation, prosecution, trial or implementation of a sentence. Therefore, the newly established inter-ministerial committee has also been tasked with developing a regulation or a law to legalize Afghan interaction with the ICC in its future work. The Afghanistan Independent Human Rights Commission (AIHRC), a member of the committee, is in charge of this task. Developing a regulation or law on such a delicate matter needs a lot of work – and the subcommittee only had six months to finish its tasks. Hussain Moin, who is in charge of developing the regulation, told AAN on 25 May 2016, that the committee had just started on this task. Due to this, the technical committee decided on 24 May 2016 to submit its findings in a report to the inter-ministerial committee and to ask for more time in drafting the regulation or law.

The inter-ministerial committee decided on 23 January 2016 to develop a regulation, but some members are lobbying for a law instead. AAN was told by someone present at the January NSC meeting that figures such as Minister of Foreign Affairs Salahuddin Rabbani, who are not happy with the intervention of the ICC, want to postpone the ICC delegation’s visit. Approval of a law would require more time than a regulation, as a law requires the approval of the Afghan parliament while a regulation just needs the nod of the Afghan cabinet. The same source said that Rabbani presented three arguments for delaying the visit. The first was that cooperation with the ICC would destroy whatever trust existed between the Government of Afghanistan and the Taleban. At the time, the Quadrilateral Cooperation Group, QCG, on Afghan Peace Talks and Reconciliation was still active. However, this argument lost its strength on 25 April following a presidential speech in which Ghani, while not closing the door to negotiations, said fighting the Taleban had to take priority (see AAN’s dispatch). Rabbani’s second reported argument was that the ICC visit would damage the relationship between the government and its international partners (ie the US) fighting in Afghanistan against the insurgency, who are mentioned in the ICC’s preliminary examination reports. Thirdly, he said it would make the mujahedin more suspicious of the National Unity Government (the two are not mutually exclusive, of course) as they might fear prosecution. It seems there may be a misunderstanding about the ICC’s temporal jurisdiction here. It seems Rabbani may have thought the ICC could investigate pre 2003, Taleban, mujahedin and PDPA-era crimes. Salahuddin Rabbani is now leader of one of the main parties to the conflict during these eras, Jamiat-e Islami, and his late father, Burhanuddin Rabbani, was its leader for decades until his death in 2011.

What is next for the ICC in Afghanistan?

Based on the Office of the Prosecutor reports, war crimes and crimes against humanity have been committed on Afghan territory since 1 May 2003. The Office is trying to launch an investigation in order to prosecute such crimes. It believes the crimes are serious and widespread and that the Afghan state has proved unwilling or unable to try them. It is looking into whether an ICC intervention would be in the interests of justice. Before any intervention, it would also have to obtain authorization from the Pre-Trial Chamber of the ICC. For the purpose of an admissibility assessment, the Office of the Prosecutor wants to send a delegation to visit Afghanistan in 2016. However, the government has postponed issuing visas until it has received the inter-ministerial committee’s findings on the consequences of the ICC’s intervention in Afghanistan. The committee had six months to finalize its work. One difficult and time-consuming task remains, which is the drafting of a regulation formalising Afghan government relations with the ICC. With the committee out of time at the end of June, it is unclear as to how this can be accomplished and, consequently, when the ICC might visit Afghanistan.

(1) The Ministry of Interior, Ministries of Defense, Foreign Affairs and Justice, the NDS, Attorney General’s Office, the Supreme Court and the Afghanistan Independent Human Rights Commission (AIHRC) all have representatives on the committee.

(2) The 2003 Status of Forces Agreement said:

The Government of Afghanistan recognizes the particular importance of disciplinary control by United States military authorities over United States personnel and, therefore, Afghanistan authorizes the United States Government to exercise criminal jurisdiction over United States personnel. The Government of Afghanistan and the Government of the United States of America confirm that such personnel may not be surrendered to, or otherwise transferred to, the custody of an international tribunal or any other entity or state without the express consent of the Government of the United States.

(3) Article 98 of the Statute says:

1) The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

2) The Court may not proceed with a request for surrender, which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.