In March 2020, the Appeals Chamber of the International Criminal Court (ICC) decided to authorize the Prosecutor to commence an investigation into alleged crimes perpetrated in the territory of Afghanistan since May 1, 2003, as well as other alleged crimes associated with the armed conflict in Afghanistan. Afghanistan became a party to the Rome Statute on February 10, 2003. This gave the ICC territorial jurisdiction to investigate any crimes committed in Afghanistan or by its nationals from May 1, 2003 onwards. Nonetheless, the recent decision comes after years of struggles between powerful actors.
Exterior View of the International Criminal Court building in The Hague on July 30, 2016 in The ... [+]
As early as 2007, the ICC engaged in a preliminary examination of the situation in Afghanistan. The investigation began after the Office of the Prosecutor received numerous communications (under article 15 of the Rome Statute) suggesting crimes against humanity, including, murder, and imprisonment or other severe deprivation of physical liberty; and war crimes, including murder; cruel treatment; outrages upon personal dignity; the passing of sentences and carrying out of executions without proper judicial authority; intentional attacks against civilians, civilian objects and humanitarian assistance missions; and treacherously killing or wounding an enemy combatant had been committed in Afghanistan.
Ten years later, on November 20, 2017, the Prosecutor requested authorization to initiate an investigation into the alleged crimes committed in Afghanistan since May 1, 2003 (as well as similar crimes related to the armed conflict in Afghanistan allegedly committed in the territory of other States Parties to the Rome Statute since July1, 2002).
The initial decision of the Pre-Trial Chamber II, on April 12, 2019, rejected the Prosecutor's request for authorization of an investigation. This came after the Pre-Trial Chamber II considered the time which had elapsed since the opening of the preliminary examination in 2006, the political changes in Afghanistan over the intervening years, the lack of cooperation that the Prosecutor is likely to encounter and which will hamper the chances of successful investigation and prosecution, and the need of the ICC to prioritize activities which would have better chances of success. The Pre-Trial Chamber II decided that “an investigation into the situation in Afghanistan at this stage would not serve the interests of justice.” The response received wide criticism. It caused the Prosecutor to file an appeal against that decision. The Appeals Chamber’s judgment of March 5, 2020, reversed the decision of the Pre-Trial Chamber II of April 12, 2019.
The decision met with some opposition from the U.S. Indeed, on March 17, 2020, U.S. Secretary of State Mike Pompeo made a number of critical comments including: “we oppose any effort by the ICC to exercise jurisdiction over U.S. personnel. We will not tolerate its inappropriate and unjust attempts to investigate or prosecute Americans. When our personnel are accused of a crime, they face justice in our country.” It is clear from the statements that the concern is that the investigation into the situation in Afghanistan will shed light on the operations of the CIA and U.S. military personnel and risk investigation and prosecutions for their crimes.
Indeed, as it is clear from the March 2020 decision, the concern is not unsubstantiated as the U.S. forms part of the investigations and especially the “alleged war crimes amounting to serious violations of article 3 common to the four Geneva Conventions (‘Common Article 3’) of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence, committed as part of a policy, by members of the CIA in a number of detention facilities in Afghanistan, as well as in detention facilities located on the territory of other States Parties.”
As the investigation into the situation in Afghanistan proceeds, only time will tell how the ICC will engage with the U.S. and whether the U.S. falls within the purview of the investigation and prosecution by the ICC. Considering the decision of the Appeals Chambers, this is very likely.
