“After a preliminary examination that lasted a decade, an additional year of waiting for victims is unacceptable. Victims who were overwhelmingly in favour of the commencement of this investigation and who continue to suffer from the crimes against humanity and war crimes committed in the context of the ongoing armed conflict, deserve to know if justice is on the horizon and if the ICC is ready to bring them relief.”
Guissou Jahangiri, FIDH Vice-President and Armanshahr/OPEN ASIA Executive Director
The amount of time taken to decide on the Afghanistan request is unprecedented. This is the fifth situation in which the Prosecutor decides to open an investigation proprio motu (i.e. initiating an investigation without being seized by a referral from a State Party or the United Nations Security Council). In such cases, the Prosecutor can only proceed with an investigation after receiving authorisation from a bench of three Pre-Trial Chamber judges. In the four former authorisation requests, a decision has always been rendered relatively shortly after the request: 50 days for Burundi; 102 for Cote d’Ivoire; 106 for Georgia; and 125 for Kenya. U.S. National Security Advisor John Bolton attacked the ICC, declaring it “dead to us”, and threatened sanctions against the Court and prosecution of its judges and prosecutors if the investigation is opened.
“The Prosecutor’s request made clear that there is a reasonable basis to investigate crimes by the Taliban, Afghan forces and by U.S. actors for torture in Afghanistan and on the territory of other States Parties. While the U.S., in particular, has spoken out against opening the investigation, the judges must act with independence and issue their decision without further delay.”
Katherine Gallagher, Senior Staff Attorney at the US-based Center for Constitutional Rights
Following the Prosecutor’s request, victims had two months to submit their observations. Despite logistical difficulties, including the short period of time for the submissions, as well as the escalation of violence in Afghanistan, hundreds of representations were submitted by, or on behalf of, Afghan victims. Submissions expressed their views on why an investigation by the ICC is important, and on what the scope of such an investigation should be. Likewise, victims of the U.S. torture program, including Guled Duran and Sharqawi Al Hajj who are both currently detained at Guantánamo Bay, submitted their representations. The submission period showed that victims’ demands for justice is and will remain high despite the challenges on the ground. It was also a valuable opportunity for the ICC to learn how to facilitate interaction with, and access to, victims in a challenging environment.
If an investigation in the situation of Afghanistan is authorised, it will be the second ICC investigation outside of Africa, after the ICC opened an investigation in Georgia in January 2016, and the first in Asia.
