The Pulse

The US Crusade Against the ICC Dashes Afghan Dreams of Justice

Recent Features

The Pulse | Society | South Asia

The US Crusade Against the ICC Dashes Afghan Dreams of Justice

For many victimized during the war, whether by the Taliban, the Afghan government, or U.S. forces, the ICC investigation was their last hope of redress.

The US Crusade Against the ICC Dashes Afghan Dreams of Justice
Credit: U.S. Air Force photo by Tech. Sgt. Sharida Jackson

On June 11, the Trump administration unleashed a series of punitive measures, including sanctions and visa restrictions against International Criminal Court (ICC) personnel and their families, in an attempt to curb the international tribunal’s investigations into war crimes committed by U.S. military and intelligence officials, the Afghan government, and the Taliban. Under the new executive order, President Donald Trump declared a national emergency to resolve the security threat imposed by the ICC. Asset freezes and travel bans are only some of the aspects of the sanction’s broad language, which allows the Trump administration to coerce and influence ICC staff and ongoing cases. The ICC condemned the decision and said it amounted to, “an unacceptable attempt to interfere with the rule of law.”

The Trump administration’s move not only paralyzes but may also kill any effort from the ICC to continue with their investigations into the human rights abuses committed by all sides in the Afghan conflict. Most importantly, it destroys any hope that Afghan victims may have had in envisioning some form of justice served on the largest stage in the world for the vicious violence they have endured at the hands of the Taliban, the Afghan government, and the United States alike. This move comes as a peace process between the United States and the Taliban is being implemented, and the prospects for direct negotiations between the Taliban and the Afghan government appear increasingly likely in the next coming weeks. If a peace process is successful, the new government — comprised of some Taliban leaders and Afghan politicians responsible for war crimes — will limit an internal probe to avoid targeting and prosecuting their own.

This March, the Appeals Chamber of the ICC ruled that the court’s prosecutor, Fatou Bensouda, may proceed with a formal investigation into war crimes and abuses committed in Afghanistan since 2003 – when Afghanistan entered the ICC – and criminal acts she may discover during her investigation. This overturned a Pretrial Chamber decision in April 2019 that rejected Bensouda’s proposal after more than a decade of examination. The Afghan security forces are being investigated for several war crimes, torture, and sexual violence, while the Taliban’s crimes are based on severe deprivation of physical liberty and persecution against identifiable groups of civilians. U.S. forces are also accused of war crimes, torture, and rape.

Although the United States is not a member of the ICC, the court’s jurisdiction still applies since Afghanistan is a signatory to the Rome Statute of the organization. It is also crucial to note that the alleged crimes committed by U.S. personnel within both the Department of Defense and the Central Intelligence Agency not only occurred on Afghan soil but also in “black sites” in Lithuania, Poland, and Romania – all members of the ICC. Notably, the violations that the ICC seeks to investigate have already been confirmed by the U.S. government itself. Specifically, a congressional report in 2014 by the U.S. Senate Select Committee on Intelligence found that the U.S. military and intelligence forces tortured Afghan nationals in all four countries, clearly displaying the rightful jurisdiction over U.S. personnel by the ICC.

This is not the first time that the Trump administration has intervened to prevent soldiers who have been charged with misconduct from being brought to justice, including those who have been charged in U.S. military courts. The high-profile presidential pardon of Clint Lorance, a lieutenant who was found guilty of ordering the murder of two unarmed Afghan men who were simply riding their motorcycles, is one example of the Trump administration overlooking misconduct by American forces. Ironically, during the briefing in which the measures against the ICC were announced, U.S. Secretary of State Mike Pompeo stated, “We hold our own accountable better than the ICC has done for the worst perpetrators of mass criminal atrocities.”

Michael Kugelman, the Deputy Director of the Asia Program and Senior Associate for South Asia at the Wilson Center, contended that “the Trump administration’s rash decision is an overreaction, and yet it could nonetheless badly undermine the pursuit of justice in areas where it is greatly needed.”

The sanctions placed on the ICC will only embolden the other accused parties in the war to resist the investigation and continue their actions with impunity. To Kugelman, “the irony here is that the administration was reacting to an ICC investigation that largely focuses on the actions of the Taliban and the Afghan government, not the U.S.” The Americans are charged with crimes against 80 victims while the Afghan security forces are being investigated for hundreds of civilian causalities and the Taliban for tens of thousands.

Besides the United States, the ICC investigations have also been criticized by current and former Afghan government officials, who claim that the government will launch an internal probe into abuses committed by Afghan security forces — despite the fact that the government has far from a successful track record in doing so over its two decades of existence.

In April, the Afghan government requested that the ICC defer the investigation until this week to allow Kabul to submit further materials regarding the over 150 active cases of war crimes committed by the Afghan security forces and Taliban militants, hoping to render an ICC investigation void. In recent years, Afghan President Ashraf Ghani has tried to keep the ICC out of Afghanistan, preferring to build his own mechanism and institutions to charge offenders. (The Trump administration has taken a similar approach to prioritize its domestic judicial review instead of an outside investigation. ) Although Afghanistan is a member of the ICC, the country continues to battle its own ability to build national capacity versus allowing foreign countries and international bodies to constantly intervene.

Omar Samad, a nonresident Senior Fellow at the Atlantic Council and former Afghan ambassador, argued that the Afghan case is controversial and shows the tension between sovereign rights and international law. Samad concluded that the sanctions “have become more political and less about justice and impartiality.”

That being said, the current cases presented by the Afghan government are not sufficient for the prosecutor to be convinced. Out of the 151 cases, 47 of them are attributed to detention centers, 33 cases are against the Taliban, 26 cases are against the Afghan security forces, and the rest are unidentified perpetrators. Fewer than 30 cases have been taken to court, much less seen convictions. The fundamental problem is not only the narrow reach of the cases but also who exactly is being targeted.

For instance, senior officials of the Afghan National Police in Kandahar have been accused of torture, but none of those cases was mentioned in the investigations of the Afghan government. The government’s record has always been poor on judicial independence, partly due to a lack of capacity but also due to a lack of political will and a desire to maintain a grip on political power. Abdul Rashid Dostum, Ghani’s former vice president and a notorious military commander who for decades has been accused of torture and rape, was promoted to the marshal of the armed forces as a necessary component of the government’s power-sharing deal with Abdullah Abdullah. This gives a sense of validity to the idea that a more powerful Afghan government will seek to prevent any investigations, be it internal or external, into their senior-level officials, pushing them to settle for a few high-profile cases and mainly mid-level offenders who carried out orders from their superiors.

The United Nations Assistance Mission in Afghanistan (UNAMA) documented well over 10,000 civilian causalities in 2019 alone by all warring parties, implying that either the Afghan government does not have the capacity to launch a comprehensive investigation or that they are intentionally preventing investigations into those who have violated the rules of engagement that are not at the highest levels of political power in the country.

The impact of the United States and Afghanistan limiting the ICC’s ability to investigate is gravely severe, not for the American officials or Afghan elite, but for the countless ordinary Afghans who must deal with the extraordinary consequences. Without a strong and independent body genuinely investigating the crimes committed, Afghans may very well never receive the justice they deserve. A project conducted by the Bureau of Investigative Journalism, Al Jazeera, and Bellingcat tracked just 10 joint U.S.-Afghan airstrikes on family compounds in the past two years. The samples revealed that 115 people were killed, more than 70 of them children. These are just a handful of the thousands of airstrikes launched every year in Afghanistan. The United States carried out over 7,400 airstrikes last year alone.

Interestingly enough, a recent annual Pentagon report claimed that only 132 civilians were killed by the U.S. military in Afghanistan, Iraq, Syria, and Somalia combined in 2019. This discovery displays a massive gap between officially reported civilian deaths and the reality – a dangerous path toward the destruction of truth and reconciliation in one of the world’s deadliest conflicts. If the Afghan government does not cooperate with the ICC or expand their own investigations, an already difficult task becomes impossible.

Sohrab Azad is a freelance journalist and the founder of Advocates for a Prosperous Afghanistan, an advocacy group aiming to engage the Afghan diaspora. Follow Azad on Twitter: @azadsohrab