The International Criminal Court’s refusal to investigate crimes in Afghanistan could damage its credibility.

On 4 December 2019, the Appeals Chamber of the International Criminal Court (ICC) will commence three days of oral hearing on the situation in Afghanistan. The hearing is on the Pre-Trial Chamber’s (PTC) decision to refuse a request by the Court’s Prosecutor, Fatou Bensouda, to investigate crimes committed by the Taliban, the Afghan Government, and the United States (US) in the context of the armed conflict in Afghanistan.

I was born in 1995, during the Afghanistan civil war. Within a few months, the Taliban seized control of Kabul and led a campaign of terror. I lived half of my childhood deprived of safety and education. After almost 24 years, there is still no peace in Afghanistan. The current peace talks with the Taliban is unpredictable. There is little hope that these talks would end the conflict.

The Afghan people are gravely affected by the war. According to Human Rights Watch, civilians have been the deliberate target of attacks, including killings, torture, and rape. Recently, the United Nations reported high-levels of civilian casualties, mainly caused by the violence between anti- and pro-government forces.

Any meaningful effort to bring peace in Afghanistan requires justice for the victims. So far, the perpetrators have enjoyed complete impunity. At the national level, there is no willingness to bring the culprits to trial. Unsurprisingly, justice and accountability frameworks are largely absent from the peace negotiations.

Despite its flaws, the ICC is the only remaining hope for the victims and for the long-awaited justice in Afghanistan. The majority of the victims supported an investigation (680 of 699 victims’ applications received on behalf of 26 villages, 6,220 individuals, and 1,690 families). The PTC’s refusal is devastating for these victims, who have been waiting more than 15 years for justice.

The PTC argued that an investigation will not serve the “interests of justice,” as the prospects for a successful investigation and prosecution are extremely limited . The chamber emphasised the unlikelihood of securing cooperation from the Afghan Government and other parties, mainly the United States . The “relevant political landscape both in Afghanistan and in key states”, as well as “the complexity and volatility of the political climate still surrounding the Afghan scenario,” make securing state cooperation extremely difficult, explained the Judges.

It is no secret that state cooperation is vital to the court. The prosecutor relies heavily on state support to access crime scenes, gather evidence, arrest offenders, and protect witnesses and its investigating teams. However, this does not mean that justice should depend on political considerations, such as cooperation from States. The ICC is tasked with prosecuting crimes in highly complex environments and will inevitably face major hurdles. Overcoming these challenges is a significant part of the court’s work and not a reason to refrain from acting.

The ICC’s role is to provide independent and impartial international criminal justice, free of external pressures and influences. Failure to act because of external political pressures, such as threats of non-cooperation, could undermine confidence in the court. It adds to the criticism that the ICC favours situations that are easy to investigate and avoids dealing with highly testing situations, particularly those where the nationals of powerful states are involved.

The US strongly opposed investigation into alleged war crimes by US forces in Afghanistan. The Trump administration recently threatened the ICC with economic sanctions and visa bans. On 4 April 2019, the US revoked the ICC Prosecutor’s entry visa. The PTC’s refusal to proceed with investigations came a few days later, raising suspicions that the court yielded to Washington’s bullying campaign. President Trump applauded the ICC and called the refusal a major “victory” for the “patriots.” Although speculative, suspicions about a potential link between US threats and the PTC’s decision can damage perceptions of independence and the Court’s credibility.

Indeed, during the negotiating history of the Rome Statute, concerns were raised that powerful states may threaten to not cooperate in order to use the “interests of justice” criterion to protect their interests. The PTC’s approach, if it stands, will allow states to promise cooperation or threaten non-cooperation to influence the court’s investigative decisions for their own political purposes. Such politicisation of the court can seriously erode faith in the ICC’s ability to deliver independent and impartial justice.

In the upcoming oral hearing, the Appeals Chamber could reverse the PTC’s decision and authorise an investigation in Afghanistan. In fact, it is an opportunity to restore confidence in the ICC and its ability provide independent international justice, without fear or favour.

Kobra Moradi is an intern at the Office of the International Co-prosecutor in the Extraordinary Chambers in the Courts of Cambodia. She has previously interned at the United Nations High Commissioner for Refugees and is one of the recipients of AIIA’s Euan Crone Asian Awareness Scholarship. She holds a Bachelors degree in law and in international relations from La Trobe University, and has completed her Honours thesis on international criminal law.

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