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The Search for Justice in Afghanistan

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The Search for Justice in Afghanistan

As Afghanistan enters another era of humanitarian crisis, the ICC remains encumbered by its institutional limitations and geopolitical realities.

The Search for Justice in Afghanistan
Credit: Pixabay

With the Taliban’s takeover of Kabul in August 2021, many governments and international organizations froze Afghan assets abroad amounting to nearly $10 billion. Of these, $7 billion were held in the U.S.. The families of victims of the September 11 attacks have since claimed that they have a right to the Afghan funds. On February 11, 2022, U.S. President Joe Biden signed an Executive Order creating the possibility of allotting half the frozen funds to the 9/11 families, while the remaining could be released for international humanitarian assistance to Afghanistan.

The potential channeling of Afghan funds to 9/11 families throws into sharp relief the absence of justice and accountability within Afghanistan for the innumerable war crimes and crimes against humanity — including enforced disappearances, torture, rape, and extrajudicial killings — that have occurred on its soil in the last few decades. 

All forces, including the Taliban, the Afghan National Defense and Security Forces (ANDSF), and U.S. forces have been accused of committing crimes against civilians in Afghanistan, incurring unimaginable human costs upon its population. In a chilling account, a 9-year-old child who survived an airstrike in Kunduz Province explained to Amnesty International, “I was sleeping when the first bomb hit… They were telling us to hide somewhere in case the second bomb happened. My father said I had to find my younger brother. The second bomb killed my mother, my uncle, my aunt, and my sister. All of them.” 

Despite extensive documentation of these crimes, however, impunity remains the norm for war crimes committed in the Afghanistan conflict. Hopes for justice were dashed further with the Taliban’s takeover of Kabul in August 2021, as the Taliban regime is unlikely to undertake proceedings investigating such crimes, the International Criminal Court (ICC) grapples with its own institutional limitations, and the United States seeks to protect its national interests.

The International Criminal Court

The ICC has a long history of engagement in Afghanistan, but an investigation is yet to be undertaken. Based on a decade-long preliminary examination, in 2017, then-ICC Prosecutor Fatou Bensouda requested the Pre-Trial Chamber to authorize an investigation into crimes committed in the Afghanistan conflict. The request was denied in 2019. However, in March 2020, the Appeals Chamber overturned the decision, thus authorizing the prosecutor to launch an investigation into war crimes and crimes against humanity committed by the Taliban and affiliated groups, the ANDSF, and U.S. military and CIA personnel in Afghanistan since 2002. 

However, the ICC’s investigation was paused in March 2020 when President Ashraf Ghani’s government requested a deferral on the basis of Article 18(2) of the Rome Statute, claiming that Afghanistan would undertake national proceedings investigating these crimes. This was a function of the complementarity principle whereby the ICC, as a court of last resort, can only prosecute when national authorities are unable or unwilling to. However, Human Rights Watch reported that of the 151 cases the Afghan government claimed to be investigating, only 28 made it to court. 

Following the Taliban’s takeover of Kabul on August 15, 2021, ICC Prosecutor Karim Khan sought authorization to resume an investigation into Afghanistan, arguing that “the prospect of genuine and effective domestic investigations” had evaporated. Simultaneously, citing resource constraints and the prospects of the investigation, he foreshadowed that his investigation would focus on crimes committed by the Taliban and the Islamic State in Khorasan Province (ISKP), while deprioritizing other actors — effectively, U.S. and Afghan forces. 

The Pre-Trial Chamber ultimately rejected Khan’s request, hinging the resumption of the investigation upon identifying Afghanistan’s current legitimate representatives. The court sought information from the United Nations Secretary-General (UNSG) and the Bureau of the Assembly of States Party to the Rome Statute. However, both the UNSG and the Bureau of the Assembly responded that such acts of state recognition depended on individual member states. As the question of Afghanistan’s legitimate representatives remains unanswered, the prospect of an ICC investigation into war crimes in Afghanistan remains stalled again.

Investigations by the United States

U.S. military and CIA personnel have been accused of war crimes in Afghanistan dating back to 2002. Nevertheless, meaningful action by U.S. courts remains absent. In 2008, U.S. Attorney John Durham investigated 101 cases of detainee abuse, including of Afghan detainees. However, 99 of the cases were closed in 2011, and the remaining two in 2012, without any criminal charges. 

Tellingly, in her preliminary examination, former ICC Prosecutor Fatou Bensouda found no evidence of the United States undertaking proceedings regarding cases of detainee abuse. 

Furthermore, the United States views the ICC’s attempts to exercise jurisdiction over crimes committed by U.S. personnel in Afghanistan as a threat to its national interests. Antagonistic responses to such attempts were manifest in the Trump administration’s imposition of sanctions on ICC personnel following the Appeals Chamber’s 2020 decision. This U.S. hostility likely contributed to Prosecutor Khan’s decision to deprioritize the actions of U.S. personnel in the investigation he hoped to begin.

What Happens to Victims of War Crimes in Afghanistan Now? 

The ICC’s investigation in Afghanistan currently remains stalled with the court focusing on identifying Afghanistan’s legitimate representatives. So far, no country has formally recognized the Taliban as the legitimate leaders of Afghanistan and none is expected to do so soon. Legal experts argue that this approach permits procedural issues to obstruct the ICC from fulfilling its purpose of ensuring accountability for the most heinous crimes. However, even if the ICC were to authorize an investigation into Afghanistan, it remains dependent upon state cooperation to undertake such an investigation. Despite the absence of formal international recognition, the Taliban are the de facto rulers of Afghanistan and such cooperation is unlikely to be forthcoming from them.

Additionally, the ICC’s initial hesitance to investigate crimes committed by U.S. personnel also threatens its credibility. It is inevitable and, given its reliance on the support of the international community, even necessary that the ICC tactfully navigate hostile political climates. However, such an approach entails entirely overlooking the rights of victims of CIA torture and U.S. drone attacks, hence aggravating concerns that the ICC’s ability to achieve accountability comes to a standstill at the doorsteps of the world’s Western superpowers. 

A domestic push for accountability within the United States is also unlikely, which will neither cooperate with the ICC’s investigations nor undertake genuine domestic proceedings. The sanctions imposed on the ICC by the Trump administration were reversed by his successor, President Joe Biden, in April 2021. However, this does not necessarily signal an era of greater cooperation by the United States in investigating its personnel’s responsibility for crimes committed in Afghanistan. It is more plausible that the Biden administration considers dialogue with the ICC a more effective means of protecting its personnel and national interests than adopting an aggressive stance toward the court. 

Thereby, as Afghanistan enters another era of humanitarian crisis, the ICC remains encumbered by its institutional limitations and geopolitical realities, whereas the United States sees any attempts to investigate its personnel’s actions in Afghanistan as a threat to its sovereignty. Consequently, for Afghan victims of war crimes and crimes against humanity, justice remains elusive.