ICC Agrees War Crimes Took Place in Afghanistan, but Rejects Prosecution Request

The judges concluded that an investigation of the US military, Afghan security forces and the Taliban “would not serve the interests of justice”.

New Delhi: Afghanistan has had a long and troubled history. Since 2001, the International Security Assistance Force (ISAF) has been deployed in the Central Asian state and been at war with the Afghan Taliban.

The orthodox Islamic group had ruled roughly three quarters of Afghanistan from 1996 to 2001 through repressive Sharia Law, before international intervention. Despite huge financial and human investment from the international community in Afghanistan, the country has still not experienced peace.

In order to complete the peace process in Afghanistan, there must also be reconciliation for the real victims of this decades-long conflict: the people of Afghanistan.

Also Read: Killed, Orphaned, Sold – Afghan War Takes Brutal Toll on Children

However, on April 12, 2019 judges of the International Criminal Court (ICC) rejected a request by prosecutor Fatou Bensouda to open an investigation into alleged war crimes and crimes against humanity committed in Afghanistan since May 1, 2003.

Amongst the accused were both the Taliban and Afghan military forces, as well as other local armed groups. Prosecutor Bensouda also alleged that similar crimes had been committed at the hands of the US’s military forces and the Central Intelligence Agency in Lithuania, Romania and Poland since July 1, 2002.

Despite a panel of three ICC judges acknowledging that international crimes have been committed in Afghanistan, the lawsuit never made it past the ICC’s Pre-Trial Chamber. Rather, Judges Antoine Kesia-Mbe Mindua, Judge Tomoko Akane, and Judge Rosario Salvatore Aitala concluded that an investigation “would not serve the interests of justice”.

US Marines prepare themselves before going training with Afghan National Army (ANA) soldiers in Helmand province, Afghanistan July 6, 2017.
Credit: Reuters/Omar Sobhani/Files

Met with indignation

This decision has been met with indignation by Afghan and non-Afghan supporters of human rights.

Guissou Jahangiri, executive director of Armanshahr/OPEN ASIA, vice-president of FIDH, and founding member of the Afghanistan Transitional Justice Coordination Group, expressed her concern that “a court of last resort, one that is supposed to be a guarantor of independent justice, rejects the opening of an investigation into the gravest crimes in Afghanistan.”

For Jahangiri, the role of the ICC is clear – “All these parties involved in the conflict in Afghanistan: the government, the Taliban, the US – all have committed crimes and should be investigated.”

This desire for justice was echoed by Dr Daoud Ali Najafi, director of the Afghanistan Organisation for Human Rights and Peace (AOHRP).  “Despite continuous requests from Afghan civil society and human rights organisations, it is very deplorable news that the ICC judges rejected the prosecutor’s request to open an investigation into the situation in Afghanistan, particularly considering the increasing number of civilian casualties and war crimes still being committed in the country,” he said. Najafi also hoped “the ICC judges reconsider their decision”.

The fragility of the Afghan state

The fragility of the Afghan state and the context of the wider political situation in the region were major reasons for the ICC’s judgment.

The ICC judges’ decision cited “subsequent changes within the relevant political landscape both in Afghanistan and in key States, coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future.”

Also Read: US Plans to Exit Afghanistan in Five Years. What Does This Mean for India?

According to a New York Times report, as of October 2018, the Afghan government only controlled territory that was home to 63.5% of the country’s population. The Afghan Taliban have been making territorial gains and were at the same time reported to control territory that was home to 10.8% of the population.

The enduring strength and influence of the Afghan Taliban has made clear that they are a force that is not likely to go away anytime soon.

Taliban walk as they celebrate ceasefire in Ghanikhel district of Nangarhar province, Afghanistan June 16, 2018. Credit: Reuters/Parwiz

Afghan elections

Afghanistan was due to have a general election this year, however it has twice been postponed, further compounding a sense of uncertainty over the nation’s future. Although it is now scheduled to take place in September, it has been speculated that elections may not take place in 2019 at all.

Meanwhile, since 2009, fighting in Afghanistan has killed 24,841 civilians and injured 5,347. 2016 proved the deadliest yet for children, according to the UN. International crimes, including murder, persecution, gender crimes, intentionally directing attacks against humanitarian personnel and against protected objects, conscription of children and sexual violence have allegedly taken place throughout this period.

With the latest series of peace talks between the Afghan government and the Taliban having stalled again this week, neither peace nor justice seem to be in sight for the people of Afghanistan.