A week has passed since the International Criminal Court’s (“ICC”, “Court”) Afghanistan decision (“Afghanistan decision”, “decision”) dropped. The internet has been aflame with commentary on Pre-Trial Chamber II’s (“PTC”) complete rejection of the Prosecutor’s request for the authorization of an investigation into the Situation in Afghanistan, a decision it reached after concluding that proceeding with the investigation would not be in the interests of justice. The PTC’s interests of justice argument and analysis are astounding, as the consequence will be to deny the Afghan people the chance at international justice. Given the argument’s weakness, and the amount of suffering endured by the people in Afghanistan, this argument is unacceptable.
According to the request, “The information available provides a reasonable basis to believe that members of the Taliban and affiliated armed groups are responsible for alleged crimes committed within the context of the situation [… against] civilians perceived to support the Afghan Government and/or foreign entities or to oppose Taliban rule and ideology.” (para. 4) This implies that the investigation would not only be focused on crimes against those who challenge the U.S.-led invasion of 2001; the alleged crimes that constitute part of the reason and justification for opening an investigation befell those who may have been perceived as opposing the Taliban and its ideology. For the purpose of examining state interests and cooperation, the statement above does not appear to support a conclusion that the Prosecutor’s intent was to single out or focus on the United States or one of its allies.
In the decision, the PTC defines the interests of justice as: “the effective prosecution of the most serious international crimes, the fight against impunity and the prevention of mass atrocities. […] an investigation would only be in the interests of justice if prospectively it appears suitable to result in the effective investigation and subsequent prosecution of cases within a reasonable time frame.” (para. 89) It concludes by arguing that granting the Prosecution’s request would not be in the interests of justice, (para. 96) due to the amount of time that has passed since the conflict’s beginning, (paras. 92-93) political changes in Afghanistan and important states, (para. 94) and the Court’s limited resources. (para. 95) It is true that the Court’s limited resources may be an obstacle to future investigative and prosecutorial attempts. It is also true that the security situation in Afghanistan has deteriorated since 2015, that the United States has not supported the ICC’s efforts, and that a great amount of time has passed since the invasion. However, these reasons do not justify slamming the door on the entirety of the Prosecutor’s efforts to fight impunity for alleged crimes committed in Afghanistan, and it is especially tenuous an argument when based on the interests of justice criterion. A more nuanced, specific consideration of the current context in Afghanistan in relation to the interests of justice criterion may have resulted in a different outcome.
The April 12th decision is notable in the brevity of its interests of justice analysis, which is limited to ten paragraphs, considering that the request is 181 pages. This is also notable considering that much has happened since Operation Enduring Freedom began in October 2001, that the scale of the crimes alleged is enormous, (See Request, VII, etc.) and that the ramifications of the decision will reverberate in political, legal, and academic echo chambers.
It is clear that after decades of foreign invasion, occupation, life under the Taliban, and de facto lawlessness, the international community has not yet succeeded in meeting Afghanistan’s need for justice and accountability for alleged heinous acts that may have been committed within its borders. It is necessary to ponder the following question: was the decision fair to the most important people affected, the Afghan people?