Justice Delayed in Afghanistan: A failure of OTP preliminary examination?
B
y Solomon Sacco, Deputy Director of Law and Policy

 

Afghanistan victims
The orphaned children of Dawood and Zahir stand beside the graveyard of their father, uncle, aunt and cousins are buried. Photo: Amnesty International

 

Amnesty International lobbied hard for the creation of the International Criminal Court. We believe that the Rome Statute system is the best opportunity to ensure access to justice for victims of crimes under international law. The Court has often been accused of being biased against Africa and while the truth is more complicated than that, it is true that the OTP appears to be less concerned about the right to justice of victims of crimes committed outside Africa than they are about the rights of victims of anti-government armed groups in Africa. So as we launch our Human Rights in International Justice project we ask, will the court meet the demands for justice that we see from all over the world – from Palestine to Colombia; from Mexico to Georgia; from Libya to Cote D’Ivoire; from Afghanistan to the Philippines?

We cannot pretend that the picture is rosy. For example Amnesty International is deeply perturbed that the OTP has still not reached a decision on whether to launch an investigation in Afghanistan 14 years after many of the crimes were committed and more than 10 years after the preliminary examination was made public in 2007. In Cote D’Ivoire a comparable process took just under a year. By 3 October 2011 the OTP had requested and received authorisation from Pre-Trial Chamber III to open an investigation proprio motu into the situation in Côte d’Ivoire, with respect to crimes within the jurisdiction of the Court that were alleged to have been committed since 28 November 2010.

In Afghanistan it took until 2013 to reach the obvious conclusion (given the amount of information in the public domain) that the Taliban has committed war crimes and crimes against humanity, and that Afghan forces and their US allies have committed the war crimes of torture and other ill treatment both within Afghanistan and abroad as part of the rendition programme. The situation in Afghanistan is extremely grave: the OTP reports the deaths at the hands of anti-government forces of more than 17000 civilians between January 2007 and December 2015. According to UNAMA, “between 1 January 2009 and 30 June 2017, armed conflict in Afghanistan has claimed the lives of 26,512 civilians and injured 48,931 others.” The situation is unlikely to significantly improve in the near future.

After 2013 a further three years were spent examining whether the Afghan and US authorities were investigating and prosecuting the crimes before national courts, despite numerous public reports by on the states’ failures and refusals in this regard. During this time, the Afghan government ignored all OTP requests for information.

Finally, in November 2016, the OTP’s annual report on the status of preliminary examinations strongly indicated that the key requirements for opening an investigation had been met. It stated that a final decision would be taken ‘imminently’. However, 10 months later that decision has been put on hold, apparently after the Afghan authorities finally decided to cooperate, providing the Office with a ‘tonne’ of new information about national investigations. Meanwhile, victims continue to wait for justice.
The OTP will and does, quite correctly, argue for complementarity and the obligation of the Office of the Prosecutor to allow states with jurisdiction an opportunity to investigate and prosecute. Thus Guariglia and Rogier say,

 

“If the policy is not to open an investigation when there are reasonable prospects that the states vested with jurisdiction will perform adequate investigations and/or prosecutions, then it is only natural that in appropriate instances, the Office may decide to give states the time that they need.”

This sounds absolutely spot-on in theory but only if applied appropriately, independently and effectively. The OTP should strive to promote complementarity whenever possible and should take seriously any state that claims that it is willing and able genuinely to investigate crimes and bring perpetrators to justice. The problem is that the OTP’s preliminary examination has been so lack-lustre that it has taken 10 years to reach this point. Surely the OTP must show that it will launch investigations unless states are making convincing progress.

After more than 10 years of preliminary examination the ICC should have had all the information it needed to make a decision to launch an investigation. The failure to do so calls into question the effectiveness of the OTP’s analysis, its efforts to promote complementarity and, indeed, its willingness to intervene in this highly politicized situation. A blog by the former ICC Prosecutor advising the USA on how to completely avoid the ICC’s jurisdiction over crimes allegedly committed by its nationals in Afghanistan, and thus implicitly on how to ensure impunity for these crimes, raises unfortunate questions about the OTP’s dedication to ensuring justice for victims in Afghanistan.

If the OTP has indeed postponed the launch of an investigation because it has received a tonne of information from the government, this demonstrates its failures to control the process when powerful states are involved. As the Office reported throughout the preliminary examination, the Afghan and US authorities repeatedly dismissed or ignored the ICC’s requests for cooperation and information– a clear sign that the authorities are neither able nor willing to fulfil their obligations. The OTP appears to have shown complete deference to the non-compliant governments in allowing this situation to continue for so long. Instead it should have shown that it will not ignore victims and their demand for justice.

I would have thought that the gravity of the situation in Afghanistan, the huge impunity gap and the importance of demonstrating the independence and effectiveness of the OTP would mean that they would prioritise the situation, but this does not seem to have been the case. While an investigation of crimes committed by US forces is highly likely to lead to a backlash against the Court, this can and must be weathered if the Court is to succeed. The longer the OTP delays in opening investigations in Afghanistan the easier it is for critics of the Court to argue that the Court is an imperialist endeavour aimed at attacking African leaders or enemies of the West.

Criticism of the ICC, and particularly of the OTP, appears to be frowned upon by officers of the Court. When Amnesty International raises its concerns about the failures of the Court to realise justice, we are not fuelled by “multiple biases … (or) basic ignorance of the Court’s legal framework and the Office’s policies and procedures” as suggested by Fabricio Guariglia and Emeric Rogier. We are trying to make the system work better for all victims. Officers of the OTP would be well advised not to underestimate how damaging concerns relating to decisions of the Office have been to public perceptions of the ICC, nor the deep level of frustration that exists amongst informed supporters of international justice. It is only if we have honest debate on the failures of the Court that we will be able to save it from irrelevance. It is time the Court gave victims in Afghanistan some glimmer of hope of justice. Any further delay in delivering justice to the people of Afghanistan will only encourage armed groups such as the Taliban and the armed group calling itself the Islamic State to continue deliberate attacks on civilians and other crimes without fear.