Fatou Bensouda, chief prosecutor for the International Criminal Court, believes there are grounds to investigate violations of international law committed in Afghanistan during the last 15 years. Such a probe would set a precedent in Asia. Photo: Max Koot/Wikimedia Commons.

Fatou Bensouda, chief prosecutor for the International Criminal Court (ICC), believes there are reasonable grounds to begin a full-fledged investigation into violations of international law committed in Afghanistan during the last 15 years.

The finding is a milestone in international criminal justice since it is without precedent in Asia. With a formal request for authorizing an investigation made to the Pre-Trial Chamber (PTC) of the court as mandated under Article 15 of the Rome Statute, Bensouda’s actions have sparked renewed interest in the court’s functioning in Asian international law circles.

The ICC is broadening its territorial reach, entering new frontiers and breaking new ground in international law. This is a welcome development and broadens the narrative of global justice. Georgia, the former Soviet republic in the Caucasus, is the only situation outside Africa undergoing an investigation. All other investigations pertain to violations in Africa.

But will the Pre-Trial Chamber act? Bensouda believes it should, given the gravity and scale of evidence unearthed during the pre-investigation process. She believes that all sides of the conflict including the Taliban-led anti-government forces, the Afghan National Security Forces, US Armed Forces and the Central Intelligence Agency are equally culpable for the wanton crimes and violations of international humanitarian law recklessly being perpetuated in the war-ravaged country since the beginning of the conflict in 2002.

Thousands of Afghan civilians have been killed

More than 26,500 civilians have died since 2009 alone in the protracted conflict that sees no end.  Since the request involves the United States and its forces, it has evoked universal attention and interest. No international adjudicatory authority since the International Court of Justice’s (ICJ) Nicaragua verdict in 1986 has specifically targeted the United States for alleged violations of International Law. (The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua’s harbors.)

The ICC … steps in only when the domestic actors are unable or unwilling to bring the guilty to justice. It is thus a court of last resort, whose powers are to be tapped only when alternative options fail to yield desirable results.

Since there have been no serious efforts to punish the perpetrators at the domestic levels, the ICC remains the only institution that can bring the guilty to task. It steps in only when the domestic actors are unable or unwilling to bring the guilty to justice. It is thus a court of last resort, whose powers are to be tapped only when alternative options fail to yield desirable results.

Congressional inquiries carried out in the US that revealed shocking details of interrogations conducted by the CIA and the US armed forces in Afghanistan have never materialized into domestic investigations or prosecutions. While the violent conflict in Afghanistan is more than 35 years old, tracing its roots to the animosities of the Cold War, the ICC can focus only on crimes committed since its inception and the dates when the respective parties joined the court.

Interestingly, the theatre of Bensouda’s investigations has not remained confined to Afghanistan. CIA bases in Poland, Romania, and Lithuania, which were used for torture and other violations of humanitarian law in the context of the Afghan conflict, are also under suspicion. Since Poland and Romania have been members of the court since July 1, 2002, Bensouda, subject to the PTC’s authorization, has the right to investigate the conflict from that date, though Afghanistan joined the court later on May 1, 2003. Though Poland, Romania and Lithuania have resorted to internal mechanisms to identify and hold the culpable accountable, Bensouda has made it clear that she will examine the credibility and genuineness of these efforts and respect the complementarity mandate of the court.

The crimes that have attracted the ICC’s attention are murder, physical deprivation of liberty, persecution of a group on grounds of political affiliation or gender, torture, intentional attacks against civilians, rape and other forms of sexual violence, and conscription of child soldiers among others.

All of these amount to either war crimes or crimes against humanity under the Rome Statute and were committed in all 34 provinces of the country, with Kandahar and Helmand being the worst affected. Human rights organizations have systematically highlighted the nature and extent of gross human-rights violations in Afghanistan over the years (https://www.hrw.org/news/2017/11/20/afghanistan-icc-prosecutor-asks-open-inquiry).

Prosection would focus on the guiltiest

As usual, the thrust of the prosecutor will be on the guiltiest and those at the command levels responsible for subordinates’ actions. The request, if granted, could mean justice for millions of direct and indirect victims of the conflict in addition to setting a robust precedent in international law for criminal prosecutions in Asia.

It is hoped that the Taliban’s outrageous attacks on civilians and incorporating it in official policy documents issued by the leadership, including fatwas to that effect, would form the evidentiary corpus of a detailed investigation.

Debates surrounding the ICC in Asia have, in most cases, remained muted and confined to membership issues. The absence of a regional/continent-specific human-rights adjudicatory mechanism in Asia is also a significant drawback. This development is likely to set the stage for visible human-rights activism on the continent and hopefully strengthen the enforcement of domestic human rights. Strengthening of norms surrounding individual criminal responsibility for mass crimes on the continent is also a welcome consequence.

An opportunity to investigate crimes committed outside Africa will strengthen the credibility of the court. Countering allegations of institutional bias will be logical, as forces widely believed to be outside the influence of the court will now be under the investigative purview of the court. Securing accountability in the world necessarily requires a broader look at the ICC’s future role in Asia. Bensouda’s initiative is a healthy development in that direction helping the court secure a global footprint in the fight against impunity.

Abraham Joseph

Abraham Joseph is a PhD candidate in law at the National Law School of India University, Bangalore, and assistant professor, School of Law, Ansal University, Gurgaon. He writes on international law, international criminal law, jurisprudence and constitutional law.