Continued hope for ICC's “imminent” investigation in Afghanistan
by Carrie Comer
For nearly four decades Afghanistan has been engulfed in a complex series of armed conflicts, international interventions and religious and political extremism.
“My entire life, all I have seen is violence, bombings, suicide attacks... It's like a horror movie that has no end. And I am forced to watch that horror movie,” stated Horia Mosadiq of the Afghan Transitional Justice Coordination Group at an event organised at Leiden University by the International Federation for Human Rights (FIDH).
Ms. Mosadiq and a number of her colleagues travelled to The Hague as part of an FIDH delegation composed of Afghan and US human rights defenders to meet with representatives of the International Criminal Court (ICC) to call for the opening of an investigation into ongoing international crimes committed in Afghanistan.
The Office of the Prosecutor (OTP) of the ICC stated in November 2016 that a final decision whether to request the Pre-Trial Chamber to authorise a full-fledged investigation in Afghanistan would be taken “imminently.”
This announcement had raised hopes within the Afghan human rights community, as few possibilities for justice are available nationally or internationally for victims of crimes committed by Afghan nationals or foreign combatants (including from the United States) on Afghan territory.
However, in spite of the 2016 announcement, the OTP has not yet requested authorisation from ICC judges to open a full investigation .
What crimes could the ICC investigate?
The ICC has held jurisdiction over international crimes committed on Afghan territory since 2003, and a Preliminary Examination by the OTP has been open for the past ten years, assessing alleged war crimes and crimes against humanity committed in Afghanistan by both Afghan nationals and foreign combatants.
The most recent annual report on Preliminary Examinations, issued in 2016, provided insight into the alleged crimes that could be investigated. The OTP believes there to be a reasonable basis that members of the Taliban and their affiliates (anti-government groups) have committed the crimes against humanity of murder; imprisonment or other severe deprivation of physical liberty; and persecution against any identifiable group or collectivity on political or gender grounds. Moreover, the Prosecutor believes them to have committed at a minimum the war crimes of murder; intentionally directing attacks against the civilian population; intentionally directing attacks against humanitarian personnel; intentionally directing attacks against protected objects; conscripting or enlisting children under the age of fifteen years or using them to participate actively in hostilities; and killing or wounding treacherously a combatant adversary. 
In addition, the OTP believes members of the Afghan authorities have committed the war crimes of torture and cruel treatment; outrages upon personal dignity; and sexual violence.
Delegates from Afghanistan also called attention to more recent and ongoing crimes, not currently mentioned within the scope of the OTP’s analysis, including systematic enforced disappearances, forced displacement, targeting of civilians including ethnic and religious minorities, targeting civilian objects and a range of sexual and gender-based crimes, particularly targeting women and girls.
Jurisdiction over potential U.S. Perpetrators
The OTP has also identified alleged crimes committed by members of the U.S. armed forces and/or the CIA, despite the U.S. not being a State Party to the Rome Statute, as the Court holds territorial jurisdiction for all international crimes committed on Afghan territory, no matter the nationality of the perpetrators.
The available information provides the OTP to believe that members of the U.S. armed forces and the CIA resorted to techniques amounting to the commission of war crimes of torture and cruel treatment; outrages upon personal dignity; and rape.
Jurisdiction over U.S. citizens would certainly pose a challenge for the ICC in terms of implementing any future arrest warrants; nonetheless, this would not be the first case in which the ICC investigated citizens from non-State Parties. Despite the obvious political and practical challenges arising from any such possible investigation, the Prosecutor in this report seems to indicate that she would not allow such obstacles to detract from her legal obligations to prosecute those most responsible for international crimes committed in Afghanistan.
As Katherine Gallagher, Senior Staff Attorney at the Center for Constitutional Rights made clear, “No high-level US official from the military, the CIA, or private contractors has been prosecuted for war crimes and crimes against humanity committed within the US torture programme in Afghanistan or at other locations, including in Eastern Europe, where detainees were sent to be tortured. An investigation by the ICC into these crimes and others by US actors, including civilian deaths, would send a much-needed message to the current US administration and others around the world that no one is above the law.”
Possibilities for justice
To date, no cases have successfully been tried nationally in Afghanistan for international crimes, and only a handful have been tried internationally under principles of universal jurisdiction.
Although draft laws have been developed to incorporate Rome Statute crimes into the Afghan penal code, even should the amendments be adopted, crimes could not be tried retroactively at a domestic level. Further, the 2007 National Reconciliation, General Amnesty and Stability Law grants blanket amnesty and immunity for international crimes to all parties, both retroactively and for potential future crimes. A peace agreement from 2016 also includes a blanket immunity provision, once again precluding any possibility for justice at a national level, as denounced by the UN High Commissioner for Human Rights in its recent report on Afghanistan to the Human Rights Council.
Though some critics of accountability processes insist that peace should be the top priority in Afghanistan, human rights advocates claim that to be a straw man argument:
“We have witnessed the adoption of six peace agreements in the last 40 years, each accompanied by blanket amnesties for perpetrators of the most heinous crimes in the name of peace,” said Mosadiq. “Today we have neither peace nor justice for the thousands of victims still suffering from the waves of repression and violence in Afghanistan.”
“We must reiterate that accountability is not an obstacle to the process of building peace, but rather a necessary ingredient for it,” stated Guissou Jahangiri, Director of Armanshar/Open Asia and FIDH Vice-President in the General Debate of last year’s Assembly of States Parties. “After years of armed conflict, and a long preliminary examination by the ICC, we are ready for accountability. There are times when a court of last resort is needed, and this is one of them.”
For now, victims of war crimes and crimes against humanity continue awaiting the possibility of justice and redress, while conflict rages on.
Carrie Comer (MSt, University of Oxford) is the Permanent Representative to the ICC for the International Federation for Human Rights (FIDH).
 The Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2016.’ (hereinafter: OTP Report) 14 November 2016, available at: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf OTP Report, para. 206. These crimes have a temporal scope from 1 May 2003 to the present day.
 OTP Report, para. 209.
 OTP Report, para. 211.
 See, for example, the trial of Heshamuddin Hesam (Netherlands) for war crimes, the trial of Faryadi Zardad (UK) for torture, and the recent charges brought against an unnamed Afghan man in Germany for membership in a foreign terrorist organisation.
 Article 3(2) states “Those individuals and groups, who are still in opposition to the Islamic Republic of Afghanistan, but cease enmity after the enforcement of this law and join the process of national reconciliation, respect the Constitution and other laws, shall enjoy the benefits of this.” Full text available at: http://peace.pajhwok.com/en/laws-and-decrees/national-reconciliation-general-amnesty-and-stability-bill
 UNHCHR, “The situation of human rights in Afghanistan and technical assistance achievements in the field of human rights,” Report presented at 34th Session of UN Human Rights Council, 27 February - 24 March 2017, para 58, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/004/63/PDF/G1700463.pdf?OpenElement