November 3, 2017, Kabul, New York, The Hague – After a decade-long preliminary examination, the International Criminal Court (ICC) Prosecutor today gave formal notice she will submit a request to open an investigation into the situation in Afghanistan. Our organizations welcome this decision and urge the ICC Pre-Trial Chamber to grant the forthcoming request, which will finally allow for impunity for international crimes committed in Afghanistan since May 2003 to be addressed. An FIDH delegation of Afghan civil society and a U.S. human rights defender travelled to The Hague in April and September 2017. They met with representatives of the ICC to call for accountability for the ongoing international crimes committed by all parties on the territory of Afghanistan. 

“Generations have suffered from the international crimes that have been committed in Afghanistan, where there is neither peace nor any genuine accountability process, including before the domestic courts. The situation in Afghanistan is still not changing. Now it’s the time for the ICC to step in,” said FIDH Vice-President and Armanshahr/OPEN ASIA Executive Director, Guissou Jahangiri, in reaction to the Prosecutor’s announcement.

The ICC Prosecutor will seek authorisation from the ICC Pre-Trial judges to open an investigation into crimes against humanity and war crimes committed by all parties. In her last report on preliminary examinations of November 2016, the Prosecutor said her Office was about to take a decision on whether to open an investigation into international crimes allegedly committed by the Taliban and affiliated armed groups, the Afghan authorities, and members of the US military forces and the CIA since 1 May 2003 on the territory of Afghanistan, and since 1 July 2002 on the territory of other States Parties to the ICC Statute. The alleged crimes include: murder; persecution; gender crimes; intentionally directing attacks against humanitarian personnel and against protected objects; and conscription of children, and sexual violence. The formal notice made public today confirmed these parameters for the investigation.

“The opening of a comprehensive investigation into the Afghanistan situation would be the first time that U.S. nationals from the military, the CIA, or private contractors could be held criminally accountable for war crimes and crimes against humanity committed in Afghanistan or at other locations where detainees arrested in Afghanistan were tortured. This long overdue message that no one is above the law is particularly important now, as the Trump administration ramps up military machinations in Afghanistan and embraces endless war with no plan for and end in sight,”said Senior Staff Attorney at the U.S.-based Center for Constitutional Rights (CCR), Katherine Gallagher.

The ICC could investigate these allegations despite the United States not being a State Party to the Rome Statute. The Court has jurisdiction over all international crimes committed on a State Party’s territory (including Afghanistan, as well as Poland, Romania, and Lithuania, where so-called U.S. ‘black sites’ were reported), regardless of the nationality of the perpetrators. According to its November 2016 report, the ICC Office of the Prosecutor has a reasonable basis to believe that members of the US armed forces and the CIA allegedly committed the war crimes of torture and inhuman treatment, rape and outrages upon personal dignity.

Following the submission of the formal request, the ICC Registry will have a period of time ranging from one to three months to collect victims’ observations on whether an investigation should be opened and on the scope of the investigation, to be submitted to the ICC Pre-Trial Chamber before its decision. Our organisations stress that an investigation should include allegations of ongoing crimes by any and all forces or groups, such as enforced disappearances, enforced displacements, sexual and gender-based crimes victimising especially women and girls, and the deliberate targeting of civilians and civilian objects. We also reiterate that the ICC should, without further delay, allow secured channels and means to enable effective victims’ participation and representation in ICC proceedings and organise much needed ICC outreach activities in Afghanistan¹.

1Refer to our organizations’ press release of 13 April 2017, “Human rights groups call for the opening of an ICC investigation into the situation in Afghanistan”: https://www.fidh.org/en/region/asia/afghanistan/human-rights-groups-call-for-the-opening-of-an-icc-investigation-into