Key takeaways from the ICC Decision to resume investigation in Afghanistan
Background
In 2017, the Prosecution submitted its Request to investigate into crimes committed in Afghanistan. The Request was first rejected by the Pre Trial Chamber in 2019 and that decision was appealed. On appeal on 5 March 2020, the Appeals Chamber authorised investigation into:
Crimes committed in Afghanistan since 1 May 2003
Other alleged crimes that have a nexus to the armed conflict in Afghanistan; AND
Are sufficiently linked to the situation; AND
Committed on the territory of other States Parties since 1 July 2002.
Shortly after in March 2020, the State of Afghanistan i.e. the Ghani administration submitted a Deferral Request, on the basis that Afghanistan was in the process of investigating and prosecuting relevant cases. However, after the Taliban took over Afghanistan, the Court became seized of the Deferral Request and the following are key points from its Decision on whether to authorise the resumption of the investigation - given the new circumstances.
"Current authorities are not continuing, cannot continue and will not continue the relevant investigations and prosecutions that formed the basis of the Deferral Request"
Key Points from the ICC's Decision of 31 October 2022
1. Status of Afghanistan's request to defer investigation
In relation to the status of the Deferral Request by the State of Afghanistan in 2020, the Court stated that it has been seized of the Deferral Request as:
The political developments in August 2021 were of such nature and scale that it was appropriate for the Prosecution to request additional and updated observations from the State of Afghanistan;
However, the State of Afghanistan did not submit any observations; and
The Deferral Request was never formally withdrawn.
As such, the Court had to consider:
Whether there are ongoing investigations or prosecutions, or
Whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned
And whether ongoing and past investigations or prosecutions involved the same individuals and substantially the same conduct as the investigations before the Court (same person/ same conduct test).
Neither did the State of Afghanistan provide information of any ongoing or past investigations or that it still wished to pursue a deferral.
Further, it was clear that investigating and judicial system in Afghanistan has collapsed post August 2021. There is no genuine access to justice and any prospect for ensuring accountability. To the contrary, human rights defenders and international actors who had supported victims had fled Afghanistan.
On that basis, the Court found that State of Afghanistan is not presently carrying out genuine investigations and that it has not acted in a manner that shows an interest in pursuing the Deferral Request - and therefore granted the Prosecution's application to resume investigation into Afghanistan.
Other points which the Court considered:
2. Prosecution's Office statement to deprioritize certain crimes
On 27 September 2021, the Prosecution Office made a statement that its office will focus its investigation ‘on crimes allegedly committed by the Taliban and the Islamic State - Khorasan Province’ and deprioritize other parts of the investigation relating to crimes committed by members of foreign armed forces or security and intelligence services of non-States parties. Several groups opposed the Prosecution's decision and called for a judicial review of the said decision.
The Court decided that the legal framework does not envisage judicial review of the Prosecution’s conclusions and therefore it remains with the Prosecution to decide which crimes to focus on and which to deprioritize.
3. Implications of the Deferral Request on crimes committed in other States
In relation to crimes allegedly committed in Poland, Romania and Lithuania, and, the implications of the Deferral Request on the investigation of those crimes:
The Court clarified that the Deferral request does not have consequence on nationals and crimes outside of the State of Afghanistan's jurisdiction and that investigation of those crimes falls within the discretion of the Prosecution.
Read: SAHR Position Statement on the Decision of the ICC
Read: Decision pursuant article 18(2) of the Statute authorising the Prosecution to resume investigation
For further information, please contact Fadi El Abdallah, Spokesperson and Head of Public Affairs Unit, International Criminal Court, by telephone at: +31 (0)70 515-9152 or +31 (0)6 46448938 or by e-mail at: fadi.el-abdallah@icc-cpi.int.
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