International Crimes Committed in Afghanistan: Towards ICC Prosecutions of All Operating Forces?

“Generations have suffered from the international crimes that have been committed in Afghanistan, where there is neither peace nor any genuine accountability process, including before the domestic courts. The situation in Afghanistan is still not changing. Now it’s the time for the ICC to step in.” FIDH Vice-President and Armanshahr/OPEN ASIA Executive Director, Guissou Jahangiri

The ICC Prosecutor will seek authorisation from the ICC Pre-Trial judges to open an investigation into crimes against humanity and war crimes committed by all parties. In her last report on preliminary examinations of November 2016, the Prosecutor said her Office was about to take a decision on whether to open an investigation into international crimes allegedly committed by the Taliban and affiliated armed groups, the Afghan authorities, and members of the US military forces and the CIA since 1 May 2003 on the territory of Afghanistan, and since 1 July 2002 on the territory of other States Parties to the ICC Statute. The alleged crimes include: murder; persecution; gender crimes; intentionally directing attacks against humanitarian personnel and against protected objects; conscription of children; and sexual violence. The formal notice made public today confirmed these parameters for the investigation

“The opening of a comprehensive investigation into the Afghanistan situation would be the first time that US nationals from the military, the CIA, or private contractors could be held criminally accountable for war crimes and crimes against humanity committed in Afghanistan or at other locations where detainees arrested in Afghanistan were tortured. This long overdue message that no one is above the law is particularly important now, as the Trump administration ramps up military machinations in Afghanistan and embraces endless war with no plan for an end in sight.” Senior Staff Attorney at the US human rights NGO, the Center for Constitutional Rights (CCR), Katherine Gallagher

 The ICC could investigate these allegations despite the United States not being a State Party to the Rome Statute. The Court has jurisdiction over all international crimes committed on a State Party’s territory, (including Afghanistan, as well as Poland, Romania, and Lithuania, where so-called US ‘black sites’ were reported), regardless of the nationality of the perpetrators. According to its November 2016 reprot, the ICC Office of the Prosecutor has a reasonable basis to believe that members of the US armed forces and the CIA allegedly committed the war crimes of torture and inhuman treatment, rape and outrages upon personal dignity.

The ICC could investigate these allegations despite the United States not being a State Party to the Rome Statute. The Court has jurisdiction over all international crimes committed on a State Party’s territory (including Afghanistan, as well as Poland, Romania, and Lithuania, where so-called US ‘black sites’ were reported), regardless of the nationality of the perpetrators. According to its November 2016 report, the ICC Office of the Prosecutor has a reasonable basis to believe that members of the US armed forces and the CIA allegedly committed the war crimes of torture and inhuman treatment, rape and outrages upon personal dignity.Following the submission of the formal request, the ICC Registry will have a period of time ranging from one to three months to collect victims’ observations on whether an investigation should be opened and on the scope of the investigation, to be submitted to the ICC Pre-Trial Chamber before its decision. Our organisations stress that an investigation should include allegations of ongoing crimes by any and all forces or groups, such as enforced disappearances, enforced displacements, sexual and gender-based crimes victimising especially women and girls, and the deliberate targeting of civilians and civilian objects. We also reiterate that the ICC should, without further delay, allow secured channels and means to enable effective victims’ participation and representation in ICC proceedings and organise much needed ICC outreach activities in Afghanistan. [1]

[1] Refer to our organisations’ press release of 13 April 2017, “Human rights groups call for the opening of an ICC investigation into the situation in Afghanistan”.