II. Prosecutor’s Request for Authorization of an Investigation

On October 30, 2017, the ICC Prosecutor notified the Presidency of her decision to request judicial authorization to commence an investigation into the situation in the Islamic Republic of Afghanistan [This notification was made by the Prosecutor pursuant to regulation 45 of the Regulations of the Court, ICC-02/17-1-Anx1.]. Consequently, on November 3, 2017, the Presidency, in its decision, assigned “with immediate effect, the situation in the Islamic Republic of Afghanistan to Pre-Trial Chamber III” [The Presidency, Decision assigning the situation in the Islamic Republic of Afghanistan, November 3, 2017, ICC-02-17-1]. On November 20, 2017, the ICC Prosecutor formally submitted the request to the Pre-Trial Chamber for judicial authorization of an investigation pursuant to article 15 [Article 15(1) provides that: “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court”. Article 15(3) provides further that: “If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected…”]. The request was “to authorize the commencement of an investigation into the Situation in the Islamic Republic of Afghanistan in relation to alleged crimes committed on the territory of Afghanistan in the period since May 1, 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002.” [ICC-02/17-7-Conf-Exp. Public redacted version ICC-02/17-7-Red, ¶ 376.] The request by the Prosecutor considered the situation in Afghanistan as a non-international armed conflict (NIAC). On April 12, 2019, the Pre-Trial Chamber II declined the Prosecutor’s request. It rejected the request on the basis that an investigation into the situation in Afghanistan at that stage would not serve the interests of justice. [Decision by Pre-Trial Chamber Judges Antonie Kesia-Mbe Mindua (Presiding), Tomoko Akane and Rosario Salvatore Aitala, ICC-02/17-33.] The Prosecutor decided to appeal to the Appeals Chamber, against this rejection [The Prosecutor raised two grounds of appeal: (1) that the Pre-Trial Chamber erred in law in seeking to make a positive determination of the interests of justice; and, further or alternatively, (2) that the Pre-Trial Chamber abused its discretion in assessing the interests of justice].

In a landmark judgment, the Appeals Chamber of the ICC, on March 5, 2020, decided to amend the impugned decision of the Pre-Trial Chamber, and authorized the Prosecutor to commence an investigation “in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002”. [The Appeals Chamber, Judgment on the appeal against the decision on authorization of an investigation into the situation in the Islamic Republic of Afghanistan, ICC-02/17-138.]

In its findings, the Appeals Chamber noted that “the Pre-Trial Chamber is not called under article 15(4) of the Rome Statute to review the Prosecutor’s analysis of the factors under article 53(1)(a) to (c) of the Statute” [Ibid.]. It further found that “the Pre-Trial Chamber’s authorization of an investigation should not be restricted to the incidents specifically mentioned in the Prosecutor’s request under article 15(3) of the Statute and incidents that are ‘closely linked’ to those incidents” [Ibid.]. It should be noted, however, that the Rome Statute mandates the Prosecutor to “extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the Statute” [Rome Statute, Art. 54(1)(a)]. It is further worth noting that the ICC has already opened an investigation into alleged atrocity crimes, including crimes against humanity and war crimes allegedly committed in Afghanistan by the Afghan National Security Forces, the Taliban, and the US military and CIA personnel. [Hilland A. & Gilfedder C., The International Criminal Court and Afghanistan, September 3, 2021, available online]. This scenario has, however, been changed, as will be discussed in the ensuing sections, when considering the request by the new Prosecutor Karim Khan for the authorization of the resumption of the investigation in Afghanistan.

III. Article 18(2) Deferral Request

Pursuant to the authorization by the Appeals Chamber for the Prosecutor to conduct an investigation into the situation in the Islamic Republic of Afghanistan, the Prosecutor issued a notification of the decision dated March 12, 2020 to the Government of Afghanistan, State parties and other concerned states, in terms of article 18(1) of the Rome Statute [Article 18(1) requires the Prosecutor to “notify all State Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States”].

Upon receiving the Prosecutor’s notification under article 18(1), the Government of Afghanistan, on April, 15, 2020, within the 30-day time limit, formally requested the Prosecutor to defer the investigation to Afghanistan national investigations and proceedings, under article 18(2) of the Rome Statute, to allow it time to furnish evidence in connection with the investigation to hold the alleged perpetrators to account [ICC-02/17-139-Anx1. The Government of the Islamic Republic of Afghanistan made a deferral request by way pf a letter addressed to dated March 26, 2020, the ICC Prosecutor, signed by its Ambassador to The Netherlands]. The Afghanistan Government requested a deferral of the Prosecutor’s investigation into cases that have been investigated or are being investigated by the national authorities in Afghanistan [Ibid.]. It would appear that, by making the deferral request, the Government of Afghanistan sought to assert that it was indeed conducting genuine investigations, contrary to assumptions by the ICC.

The article 18(2) deferral request found its legal foundation on the principle of complementarity. It signifies the operation of the principle which requires that the ICC should only intervene in cases where the national authorities are not willing or unable genuinely to investigate and prosecute core crimes [See article 17 of the Rome Statute.]. The principle seeks to ensure that the Court does not duplicate, or take precedence over, domestic investigations unless warranted by inaction on the art of the national criminal jurisdiction. It underscores the principle that the State must enjoy primacy over the ICC, in the investigation and prosecution of the Rome Statute crimes. It follows, therefore, that the national authorities of Afghanistan have and enjoy primacy, over the ICC, with regard to domestic investigations of the alleged war crimes and crimes against humanity. However, it has been argued that this is based on a complementarity criteria that differ slightly from when a defendant challenges complementarity in a specific case, where the Court determines the ability and willingness of the State to investigate and prosecute the individuals most responsible for the alleged crimes [See generally, Makaia C., Afghanistan’s request for deferral: A procedural dead end, Leidenlawblog, March 18, 2021, available online].

It is critical to note that this was the first (and the only) time a deferral request was made in the jurisprudential history of the ICC [See ICC-02/17-152 17-05-2021 1/12 EK. Response to Submissions on Behalf of Certain Victims Who Participated in the Litigation Under Article 15(4) (ICC-02/17-146-Anx and ICC-02/17-148-Anx). Pre-Trial Chamber II. Situation in the Islamic Republic of Afghanistan, at ¶ 3.]. Prior to the Afghanistan request, the Court had never been seized with a matter requiring to interpret article 18 so closely. Article 18(2) enables a requesting State to halt the Court’s exercise of its jurisdiction over potential cases preemptively, if the State in question can establish that it has or has had an ongoing genuine investigation on the relevant facts.

The Government of Afghanistan, in its formal letter requesting for deferral, asserts that it is investigating or has investigated both Afghan nationals, and others within its jurisdiction, for alleged war crimes and crimes against humanity [ICC-02/17-139-Anx1]. It states that those investigations and proceedings cover allegations of crimes committed by Afghan forces, the Taliban and the related groups, other terrorist groups and international forces” [Ibid.].

The deferral request stated further that the alleged crimes that have been or are being investigated by the authorities of Afghanistan cover both war crimes and crimes against humanity including aerial bombardments of civilians, attacks on civilians and civilian properties, the killing and injuring of civilians, detentions and torture, and destruction of civilian properties [Ibid.]. It was indicated that of the 151 cases listed, only 28 had been prosecuted or had resulted in convictions and the remaining were still under investigation and/or arrest warrants have been rendered to the Afghan National Police and National Directorate for Security. [See Makaia, C., supra. See deferral request by Afghanistan, tabulated under the section of letter (attachment) titled: “The Summary Outline of National Investigations and Proceedings”].

The Afghanistan deferral request disclosed a breakdown of the alleged cases as follows: that there were 26 cases of war crimes alleged against Afghan National Security Forces (ANSF) and the international forces; 33 cases of war crimes and 3 cases of crimes against humanity allegedly committed by the Taliban forces and affiliated groups; 4 cases of war crimes and 3 cases of torture committed in the Pul-e-Charkhi prison, Bagram detention centre, Kabul detention centre, and the detention centers operated by the National Directorate for Security (NDS) in Kabul and other provinces; 30 cases of war crimes and 5 cases of crimes against humanity that were being investigated where the identity of the perpetrators were unknown at the time of the submission of the deferral request [See also Gossman, P, ICC investigation vital for justice in Afghanistan, Human Rights Watch, June 11, 2020, available online].

The request mentioned the crimes allegedly committed by the Taliban and groups affiliated to it as including murder, torture, burning civilians, hostage-taking, suicide attacks, forced marriage of women and child rape. The cases against the ANSF included the commission of murder, injury, civilian killings (committed by the NDS) and destruction of civilian objects. The cases against the Afghan air force supported by international forces (“Resolute Support Mission forces”) included airstrikes on civilian houses and objects in provinces of Kapisa, Nangrahar and Badghis. Alleged crimes committed by the ISKP members included suicide attacks, killing civilians and shutting down schools by force [Ibid.].

However, the Government of Afghanistan had been unable to confirm, with cogent evidence, the status of its on-going or concluded investigation [Makaia, C., supra]. The request did not, however, disclose whether any of the suspected individuals subject of an arrest warrant had effectively been arrested [Ibid.].

IV. Prosecutor’s Notification of Status to the Pre-Trial Chamber

On April 16, 2020, the Prosecutor notified the Pre-Trial Chamber that the Government of Afghanistan had requested to defer her investigation into the situation in the Islamic Republic of Afghanistan [A year later on April 16, 2021, the Prosecutor made another Notification of status to the Pre-Trial Chamber. Notification on status of the Islamic Republic of Afghanistan’s article 18(2) deferral request, ICC-02/17-142.]. The Government requested for more time, before June 12, 2020, to be able to submit additional information and supporting materials covering the historical and on-going investigation. The ground for seeking additional time were that the Covid-19 pandemic hampered the process of gathering essential documents and materials to support the deferral request. In her notice to the Pre-Trial Chamber, dated April 15, 2020, the Prosecutor Bensouda intimated that she accepted the arguments by the Afghan government [See work by Qaane, E., A request to delay: Another Afghan government attempt to prevent an ICC war crimes investigation? Afghanistan Analyst, May 13, 2020, available online]. Owing to extraordinary circumstances concerning the Covid-19 pandemic the Prosecutor acceded to this request [ICC-02/17-138, ¶¶ 1–4].

It is critical to note that once this deferral request was made, the Prosecutor was obliged to consider the deferral of the investigation to Afghanistan, unless the Pre-Trial Chamber, on the application of the Prosecutor, decided to authorize the investigation. No such application was ever made to the Pre-Trial Chamber, and so the deferral request consideration remained in place, until the new Prosecutor Karim Khan applied for authorization for the resumption of the investigation [Request to authorize resumption of investigation under article 18(2) of the Statute, Pre-Trial Chamber II, September 27, 2021, ICC-02/17-161].

Under Article 18 of the Rome Statute, the Prosecutor verifies if the cases presented by the Afghan government are against the alleged perpetrators that her or his office would most likely zero in. The Prosecutor’s deferral to Afghanistan’s investigation is open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on Afghanistan’s unwillingness or inability genuinely to carry out the investigation [Article 18(3) of the Rome Statute.].

On June 12, 2020, Afghanistan provided to the Prosecutor voluminous material regarding cases it submits to have investigated or is in the process of investigating. This was to demonstrate that the government of Afghanistan was indeed seized with the domestic investigation and prosecution, in support of its deferral request, under the principle of complementarity.

In order to conduct a more comprehensive assessment of the extent of the the domestic investigation and prosecution, the Prosecutor requested for more as much information as possible from Afghanistan [Prosecutor’s notification of status on the situation in Islamic Republic of Afghanistan, op. cit.]. In light of the on-going conflict at the time, logistical constraints, and the Covid-19 pandemic limitations, the Prosecutor liberally allowed Afghanistan to provide the requested material within a 60 day time-limit, with a possibility for a further extension [Ibid.]. A number of meetings have been held between the Prosecutor and the Afghanistan Government, and the Prosecutor indicated they have been productive in reinforcing the efforts of the Prosecutor to review the deferral request.

After the review of the information and evidence, the new Prosecutor Karim Khan is now convinced, the ICC investigation into the relevant cases should not be deferred, but resumed. The Prosecutor could still investigate the cases that the request of the Afghanistan government does not encompass, for instance the alleged crimes committed by US nationals, but for now he has deprioritized most of those investigative aspects concerning the US nationals and Afghan national security personnel [See Request to authorize resumption of investigation under Article 18(2) of the Statute, Pre-Trial Chamber II, September 27, 2021, ICC-02/17-161].

V. Article 18(2) in the New Taliban Era

The previous Afghanistan regime encountered several impediments, which are likely to continue to bedevil the Taliban regime. Some of the challenges included, the maintenance of the National Reconciliation, General Amnesty and National Stability Law which have prevented the previous regime from effectively providing justice to the victims [See Makaia, C., supra].

It may be argued that the Prosecutor Karim’s deprioritizing of the investigation of US forces and CIA personnel may also have connection with the fact that none of the 151 cases submitted by the Afghan government are related to the alleged crimes attributed to the US forces and the CIA by the Prosecutor Bensouda in her original application to Pre-Trial Chamber for authorization to commence the investigation [Request for authorization of an investigation into the situation in the Islamic Republic of Afghanistan, pursuant to article 15, November 20, 2017].

The question to be posed now is whether the Taliban authority is willing and able genuinely to administer justice in relation to historical and on-going war crimes and crimes against humanity committed in Afghanistan. The evidence appear to suggest that atrocities have been committed in Kandahar, Panjshir, and other parts of the country.

Formidable impediments exist that tend to frustrate the efforts of the ICC to investigate and prosecute historical and ongoing heinous crimes allegedly committed by the Taliban, who are currently effectively in authority and control of national investigative and prosecutorial apparatus of the government of Afghanistan [Makaia, C., supra].

The ICC relies largely upon the cooperation of its member states to effectively access information and evidence vital for its own investigation, and also to effect arrest if necessary. It is highly debatable that the Taliban would offer the necessary cooperation in relation to ICC investigations targeting atrocities allegedly committed by its own fighters or leaders.

With respect to the non-nationals of Afghanistan, article 18(2) is still instructive, particularly, where it provides that “within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction…” (emphasis supplied) [See arguments by Elroa, in the Leidenlawblog and Makaia, C., op. cit.]. Arguably, positively read and construed, article 18(2) allows Afghanistan to investigate other nationals. It is critical to explore the scope of that provision citing “within its jurisdiction…”. Jurisdiction does not necessarily solely mean a territorial one [Ibid.].

VI. The New Prosecutor Karim Khan and Article 18(2) Deferral Request

The new Prosecutor, Karim Khan, in his early official statement on August 17, 2021, concerning the situation in Afghanistan, did express deep concern about the escalating violence in the situation in Afghanistan [Statement of the new Prosecutor Karim Khan, available online]. He echoed “the views of the United Nations Security Council over reported incidents on the territory of Afghanistan that may amount to violations of international humanitarian law under the Rome Statute” [See generally, UN Security Council, “The situation in Afghanistan” August 16, 2021, UN Doc. S/PV 8834 (“United Nations Security Council Emergency Meeting”)]. The reports, he said, included allegations of extrajudicial executions in the form of revenge killings of detainees and individuals who surrendered, persecution of women and girls, crimes against children and other crimes affecting the civilian population at large [Ibid.]. The Prosecutor concluded by affirming that his “office will continue to monitor the Afghanistan situation, and will act, as necessary, in accordance with the responsibilities under the Rome Statute.”

The Prosecutor followed up on the preceding undertaking, by another statement indicating he had on September 27, 2021 filed an application, before the Pre-Trial Chamber, for an expedited order under article 18(2) seeking authorization to resume investigation into the situation in Afghanistan [Request to authorize resumption of investigation under article 18(2) of the Statute, ICC-02/17-161. Statement of the new Prosecutor Karim Khan, available online]. While applauding the Government of Afghanistan for its constructive engagement with his Office prior to August 15, 2021, he observed that recent developments in Afghanistan and the change in the national authorities, represent a significant change of material circumstances with import for his Office’s ongoing assessment of the deferral request [Article 18(3) of Rome Statue provides that: “The Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation.]. His conclusion was that there was no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan [Ibid.]. The Prosecutor, however, expressed optimism for constructive engagement with new Afghanistan national authorities in accordance with the principle of complementarity.

It is instructive to point out that the Prosecutor, notes that, if authorized to resume his investigation, owing to limited resources, his focus would narrow down to crimes allegedly committed by the Taliban and the Islamic State-Khorasan Province, and seek to deprioritize other aspects of the investigation [Ibid.]. Presumably, this effectively leaves out of the investigation, the US forces and the CIA personnel, as well as the members of the former Afghan National Police and other Afghan security agents, such as those under the National Directorate for Security.

It is evident from the Prosecutor’s observations that the situation in Afghanistan, during and after the Taliban takeover of control, demonstrate a continued state of non-international armed conflict [See Rome Statute, Article 8(2)(d)]. Upon the authorization by the Pre-Trial chamber, it remains to be seen how the Prosecutor will overcome the formidable challenges of securing the cooperation of the Taliban authorities in conducting the investigation, let alone the preservation of evidence within the territorial control of the Taliban. There is also bound to be concern as to why the US Forces and the CIA agents have been left, by the Prosecutor, out of the scope of his intended resumed investigation. It will be interesting to see how the Prosecutor Karim Khan maneuvers his way around all the mentioned issues.