Background

The ICC’s investigation of the situation in Afghanistan focuses on alleged atrocity crimes committed during the ongoing armed conflict which involves international military forces (International Security Assistance Force (ISAF), North Atlantic Treaty Organization (NATO) forces, U.S. forces), Afghan government forces, and armed anti-government groups such as the Taliban. After Al-Qaeda terrorists attacked the World Trade Center in New York City and the Pentagon in Washington, DC on September 11, 2001, the U.S. launched the “War on Terror.” The U.S. demanded that the Taliban government of Afghanistan surrender Al-Qaeda leader Osama bin Laden and stop Al-Qaeda terrorist operations in Afghanistan. In October 2001, a U.S.-led coalition of forces invaded Afghanistan and attacked the Taliban government and Al-Qaeda terrorists. In December 2001, the Taliban government was ousted, and the UN assisted with the formation of the Afghan Interim Administration. Throughout the conflict, civilians were killed and injured by international forces, Afghan government forces, and Taliban and other armed anti-government groups. 

In 2020, Afghanistan remained one of the deadliest conflictsfor civilians and consistently neared the top of risk lists for mass atrocities. 

 

ICC Status

Afghanistan is a State Party of the International Criminal Court (ICC) and ratified the Rome Statute on February 10, 2003. After receiving communications since June 2006 of alleged atrocity crimes committed in Afghanistan, the ICC Office of the Prosecutor (OTP) made public its preliminary examination in 2007.  After opening a preliminary examination, to make a determination to open a formal investigation, the OTP assesses the following factors: jurisdiction (temporal, territorial or personal, and subject matter); admissibility (complementarity and gravity); and the interests of justice. 

As of December 2017, the OTP completed its preliminary examination. On November 20, 2017, the ICC Prosecutor requested authorization from Pre-Trial Chamber III to initiate an investigation into alleged war crimes and crimes against humanity committed in relation to this conflict.

On April 12, 2019, Judges in Pre-Trial Chamber II rejected the Prosecutor’s request and declined to authorize an investigation. The Pre-Trial Chamber found that  there was sufficient evidence at this early stage (“reasonable basis to consider”) that crimes under the Court’s jurisdiction were committed in Afghanistan and also found that cases would be admissible—that the Court’s gravity threshold had been met and that there had not been national criminal proceedings regarding those most responsible for the crimes at issue. However, the Court determined that an investigation would not be “in the interests of justice” for several reasons, including the significant time passed since the preliminary examination began in 2006 and the lack of cooperation expected from states involved. Pre-Trial Chamber II granted the Prosecutor’s request for leave to appeal on Sept. 17, 2019. Arguments from the Office of the Prosecutor, representatives of victims, and amici were heard in December 2019.

On March 5, 2020, the Appeals Chamber decided unanimously to authorize the Prosecutor to open an investigation. The Appeals Chamber held that the Pre-Trial Chamber erred in considering whether an investigation was in the “interests of justice.” Because the Pre-Trial Chamber had found there was a factual and jurisdictional basis to proceed, the Appeals Chamber authorized the Prosecutor to commence an investigation according to the parameters in her request (crimes allegedly committed on the territory of Afghanistan since May 1, 2003, and other alleged crimes that have a nexus to the armed conflict, are sufficiently linked to the situation in Afghanistan, and were committed on the territory of other States Parties to the Rome Statute since July 1, 2002). 

In April 2020, Afghanistan filed a request under Article 18 of the Rome Statute asking the Prosecutor to “defer to Afghanistan’s national investigations and proceedings,” which Afghanistan alleges “cover allegations of crimes committed by Afghan forces, the Taliban and related groups, other terrorist groups and international forces.” Afghanistan provided further confidential information on national proceedings in June 2020 which are under review by the Prosecutor.

 

US Sanctions on ICC Personnel

In June 2020, US President Donald Trump issued Executive Order 13928 authorizing financial and travel sanctions against ICC personnel and their immediate families, alleging ICC investigations of US personnel or those of allies without consent constituted an “unusual and extraordinary threat to the national security and foreign policy of the United States” and declaring a “national emergency.” On September 2, 2020, the ICC Prosecutor and a senior staff member were added to the US Office of Foreign Asset Control list and designated as “specially designated nationals,” materializing travel and economic sanctions made possible by the executive order. President Biden reversed the executive order and removed all associated sanctions in April 2021. 

 

Other Resources (non-ABA)

Afghanistan and the International Criminal Court: Questions & Answers (Human Rights Watch 2017)
The International Criminal Court and the United States: Questions & Answers (Human Rights Watch 2020)
Amb. David J. Scheffer, The ICC’s Probe Into Atrocities in Afghanistan, What to Know (Council on Foreign Relations, Mar. 6, 2020)
International Criminal Court: U.S. Sanctions in Response to Investigation of War Crimes in Afghanistan (Congressional Research Service, June 19, 2020)

Updated: 5/10/2021