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By:
Yew Pui Yi, LLB Student, Faculty of Law, University of Malaya and
Dr. Stewart Manley, Lecturer, Faculty of Law, University of Malaya
The Office of the Prosecutor (‘OTP’) of the International Criminal Court (‘ICC’) in 2006 began a preliminary examination of war crimes and crimes against humanity allegedly committed in Afghanistan since 1 May 2003.[1] In 2020, the ICC Appeals Chamber approved the OTP’s request to begin a more formal investigation of these possible crimes. Although the investigation includes allegations against Afghan government forces and the Taliban, we focus here on the involvement of the United States Armed Forces and the United States Central Intelligence Agency. It is these allegations that have made the investigation probably the Court’s most politically explosive and, at least at one point, potentially the most consequential. In this case commentary, we first describe the key events in the unfinished proceedings up to 4 April 2023, including the reasons for the extraordinary delays, in what is referred to formally as the Situation in the Islamic Republic of Afghanistan (the ‘Afghanistan Situation’).[2] We then address how the Afghanistan Situation has brought to the surface some of the tensions that continue to characterize the ICC’s work – between the OTP and the Court, and between the OTP/Court and the US government.[3]
In response to the attacks of 11 September 2001 in Washington DC and New York City, the US government sent military and CIA personnel to Afghanistan as part of its ‘War on Terror’. These personnel captured and interrogated Afghans and others who they suspected of being members of or cooperating with the Taliban or Al Qaeda. In 2006, after having received information about war crimes and crimes against humanity having occurred in Afghanistan, the OTP began a ‘preliminary examination’ that included the treatment of detainees in US custody.[4] The OTP found that they had been subjected to a whole host of inhumane interrogation techniques including exposure to extreme heat or cold, ‘diapering’ (requiring them to urinate or defecate on themselves or their clothing), suspension from the ceiling, ‘walling’ (being slammed against a wall), excessively forceful rectal feeding, ‘waterboarding’ (simulated drowning), being photographed while being sexually molested, beatings on the testicles and ‘rough takedowns’ (in which a detainee would be yelled at, dragged out of the cell, stripped, secured with tape, hooded, and then dragged down a corridor while being slapped and punched). The actual list in the OTP’s filing is much longer. If proven, these are the war crimes of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence.
Perhaps equally condemnable was that these acts were not a case of a few bad apples acting on their own. The United States Senate Armed Services Committee found in 2008 that senior government officials were involved in the development and approval of these techniques, especially those used by the CIA. The CIA even took steps to seek immunity from prosecution for its interrogators. The Senate Committee also found that ‘CIA justification for the use of those techniques rested on inaccurate claims of their effectiveness, while evidence showed that they had not in fact proven an effective means of acquiring intelligence or gaining cooperation from detainees’.[5]
In 2017, an agonizingly long eleven years after it began its examination, the OTP concluded that there was a reasonable basis that war crimes and crimes against humanity had been committed in Afghanistan and, finally, filed a request for authorization from Pre-Trial Chamber III of the ICC to proceed with an investigation.[6] The investigation request also included potential crimes in other countries that had a nexus with the armed conflict in Afghanistan, such as maltreatment of detainees in Poland and Romania. The OTP explained that the delay was caused by numerous challenges in verifying information, managing security concerns during its visits to Afghanistan, obtaining cooperation, conducting a proper legal assessment of the incidents, acquiring information about national proceedings by Afghan and US authorities and attributing potential responsibility.
The OTP’s request and the Pre-Trial Chamber’s subsequent rejection of it introduces the first tension exposed by the Afghanistan Situation. Pre-Trial Chambers are a judicial mechanism that is generally not found in other international and national criminal law systems. Their primary role, in essence, is to provide judicial oversight of the OTP’s investigations. Tension between the Pre-Trial Chambers and the OTP, therefore, should be expected.
The OTP argued that there was sufficient evidence of the alleged crimes, that the US and Afghanistan governments were not taking action against the alleged perpetrators (‘[n]ear total impunity has been the rule, not the exception’) and that the gravity of the crimes and the interest of the victims meant there were no substantial reasons to believe that an investigation would not serve the interests of justice.
Pre-Trial Chamber III disagreed on the third point. This would be the first time that a request for an investigation was denied. The Chamber ruled that an investigation would not serve the interests of justice because too much time had elapsed between the alleged acts (the majority had been committed between 2003-2004) and the OTP’s request, there was little likelihood of securing meaningful co-operation from relevant authorities and the investigation would be too expensive. Indeed, the lack of Afghan and US cooperation was one of the main reasons for the OTP’s initial delay. Was the Pre-Trial Chamber simply doing its job to steer the OTP to situations with the best prospects for success or, as put by one legal scholar, bending to the will of the US?[7] It is difficult not to imagine that the decision, if upheld, might encourage non-cooperation from countries under examination and investigation.
The OTP appealed and the Appeals Chamber, ruling in favour of the OTP, ‘amended’ the Pre-Trial Chamber decision on 5 March 2020, holding, among other things, that the Pre-Trial Chamber did not have the power to review the OTP’s decision on whether there were substantial reasons to believe that the investigation would not serve the interests of justice. Examining several provisions of the ICC’s Statute – called the Rome Statute – and the Court’s regulations, the Appeals Chamber reasoned that while the OTP was obliged to consider the interests of justice in deciding to request approval for an investigation, the Pre-Trial Chamber’s review of the request was limited to whether there was a reasonable factual basis for the allegations and whether the potential cases appeared to fall within the Court’s jurisdiction.
The Appeals Chamber’s 2020 ruling would not, however, be the end of these tensions. The next major development came only three weeks later when the Afghan government sought a deferral of the investigation to allow it to investigate the allegations itself. The Rome Statute – specifically, Article 18(2) – envisions this type of request. The OTP agreed and worked with the Afghan government until 15 August 2021, when the Taliban routed government forces and captured the capital city of Kabul. As a result, on 27 September 2021, the OTP asked Pre-Trial Chamber II for permission to resume the investigation.
In October, the Chamber agreed, noting that the Afghan authorities (now, the Taliban) were no longer genuinely investigating. One would have thought that the OTP would be satisfied and it was, but not completely. In addition to ruling in the Prosecution’s favour, the Pre-Trial Chamber also appeared to disallow the investigation of crimes committed after 5 March 2020 (the date of the Appeals Chamber’s authorization of the investigation). Again, the OTP felt that the Pre-Trial Chamber was inappropriately restricting its ability to determine the scope of the investigation and, again, it appealed. On 4 April 2023, the Appeal’s Chamber again agreed with the OTP.
The Afghanistan Situation has also brought to the surface the simmering tensions between the OTP/Court and the US government. The US played an important role in establishing the ICC but has to date declined to accede to the Rome Statute. Its primary concern is that the OTP would bring politically-motivated prosecutions against US military personnel and government officials. The US attitude towards the Court has alternated between lukewarm (Clinton, Obama and Biden) and hostile (Bush and Trump). In 2000, President Bill Clinton signed the Rome Statute but did not send the treaty to the US Senate for ratification. Signing indicates an intention to later ratify and an obligation to refrain from acts that would defeat the object and purpose of the treaty.
In 2002, President George W. Bush effectively ‘unsigned’ by authorizing then-Under Secretary of State for Arms Control and International Security John Bolton to inform the United Nations that the US had no intention to ratify and had no obligations under the Statute. Bush’s administration also negotiated over 100 bilateral ‘non-surrender’ agreements by which other countries agree to not surrender to the ICC any American citizens in their territory. Countries that refused to sign could be denied military assistance.
The relationship warmed under President Barack Obama, with the US attending ICC Assembly of States Parties’ meetings and the first ICC review conference. The US also helped transfer fugitives from the Democratic Republic of the Congo and the Central African Republic to the ICC.
The relationship during the presidency of Donald Trump, exacerbated by developments in the Afghanistan Situation, reached new lows. In 2019, the US revoked the entry visa and froze the assets of the then-Prosecutor, Fatou Bensouda, and other ICC officials involved in the investigation. Bolton, then Trump’s national security advisor, condemned the Afghanistan inquiry and called the ICC illegitimate, remarking memorably, ‘We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead.’
Under President Joe Biden, the US has offered cooperation in ‘exceptional cases’, including the recent offer to share evidence of Russian war crimes in Ukraine. The executive order freezing assets and imposing visa restrictions was revoked. There is no evidence though, that US opposition to the investigation in the Afghanistan Situation has changed.
The Afghanistan Situation is a true litmus test of the Court’s will to hold even the most powerful accountable. Under the Rome Statute, military leaders and even presidents or prime ministers can be prosecuted. A suspect does not have to be physically present at the scene of the crime and in fact would not even have to be in Afghanistan, raising the possibility that even high-ranking civilian officials sitting in Washington DC offices could be held accountable where they knew of or consciously disregarded information about the crimes and failed to take necessary and reasonable measures to prevent them or see to their investigation and prosecution. The investigation of allegations against US officials probably gave hope to those who believe the ICC only goes after weaker countries and ignores powerful ones.
This hope seems to have been dashed, however, when the OTP announced in September 2021 that, due to limited resources, it would prioritize the more serious allegations of crimes committed by the Taliban and Islamic State Khorasan (ISIS-K). Implied was that it would deprioritize the crimes allegedly committed by US forces and the CIA. Naturally, some saw this move as a double standard or, at the least, immensely damaging to the Court’s image as an institution that delivers justice without fear or favour. Later, at the Appeals Chamber proceedings that resulted in the 4 April 2023 judgment, legal representatives for some of the victims argued that the OTP was obligated to investigate all crimes related to the Afghanistan Situation within the jurisdiction of the Court. Choosing only one of four components, they argued, ‘impact[ed] the objectivity of [the] investigation’ and was ‘legal error’. The OTP responded that these points were outside the scope of the appeal and, regardless, that it has the prerogative to determine how to investigate. The Appeals Chamber, apparently agreeing that this issue was outside the scope of the appeal, declined to address it.
The investigation into war crimes and crimes against humanity committed in Afghanistan is ongoing. No Afghan suspects have yet been named. Given the focus now on what the OTP considers the more serious allegations, it seems increasingly unlikely that the detainees tortured in US detention centres will ever see justice. The investigations into other situations such as in Myanmar and Ukraine stretch the OTP’s resources even more than before. We think it is important to remember that the ICC is not the only venue for justice. Indeed, the Rome Statute gives priority to genuine prosecutions in national courts. In the future it is crucial, therefore, for the international community to pressure countries like the US to genuinely and fully investigate and prosecute their own war criminals. The US has had its own war crimes legislation since 2006 and, in late 2022, passed additional legislation enabling prosecution even of non-US citizens present in the US. But these laws do not include crimes against humanity and do not extend to military and civilian commanders responsible for the war crimes. Additionally, investigation and prosecution must be genuine and comprehensive. John Bellinger III, a former legal adviser for the US National Security Council, has claimed that the US ‘had investigated most of those offenses’ in Afghanistan. But he conceded that one ‘can argue about whether the investigations were full enough’.[8]
[1] Afghanistan acceded to the ICC’s Rome Statute on 10 February 2003 and the Statute came into force in Afghanistan on 1 May 2003. [2] The term ‘Situation’ is used to describe ICC proceedings after the Court has authorized the OTP to investigate potential crimes but before individual defendants have been charged. [3] The OTP is technically an organ of the ICC but we use the terms ‘ICC’ and ‘Court’ to refer to its judicial chambers. [4] The aim of a preliminary examination is to determine whether there is ‘sufficient evidence of crimes of sufficient gravity falling within the ICC’s jurisdiction, whether there are genuine national proceedings, and whether opening an investigation would serve the interests of justice and of the victims.’ International Criminal Court, ‘How the Court Works’, https://www.icc-cpi.int/about/how-the-court-works. [5] Report of the Committee on Armed Services, United States Senate, ‘Inquiry into the Treatment of Detainees in U.S. Custody’, 20 November 2008. [6] In an ‘investigation’, the OTP shifts from examining information received to affirmatively collecting evidence and identifying suspects. But when the OTP decides to commence an investigation proprio motu – or, on its own initiative – it needs approval from the Pre-Trial Chamber (as opposed to when the situation is referred from a country that is a party to the Court or from the United Nations Security Council). [7] Alex Whiting, ‘The ICC’s Afghanistan Decision: Bending to U.S. or Focusing Court on Successful Investigations?’, Just Security, 12 April 2019, https://www.justsecurity.org/63613/the-iccs-afghanistan-decision-bending-to-u-s-or-focusing-court-on-successful-investigations/ [8] ‘The U.S. Does Not Recognize the Jurisdiction of the International Criminal Court’, NPR, 16 April 2022, https://www.npr.org/2022/04/16/1093212495/the-u-s-does-not-recognize-the-jurisdiction-of-the-international-criminal-court.