There have be many reports that the Office of the Prosecutor at the International Criminal Court (ICC) is considering opening a situation, the ICC’s term for the larger investigation, in Afghanistan. It has been reported by the Wall Street Journal, by the AP, repeated here in the Huffington Post, and by The Guardian to name just a few of the sources. At least one law professor has editorialized against it in The International Herald Tribune, repeated in The Huffington Post.
Because the details of the investigation have not been made public, there is significant speculation about who might be charged with war crimes, crimes against humanity or genocide in an ICC case in Afghanistan. Afghanistan is a signatory to the ICC treaty, and so the court has jurisdiction of crimes committed in Afghanistan. The majority of countries contributing troops to the International Security Assistance Force (ISAF) in Afghanistan are also signatories to the treaty, though the United States is not.
Speculation has centered on whether the prosecutor is looking at cases involving ISAF troops, the Taliban, or member of the Afghan government. ISAF troops, even those from countries not a party to the court, such as the U.S. could be prosecuted, but it seems most likely the ICC is looking at the actions of Afghan actors, the Taliban and warlords, particularly those who have become part of the Afghan government or who have otherwise enjoyed the protection of the government.
Why might U.S. and other ISAF troops not expect prosecution? Because the court is complementary to national justice systems. The principle of “complementarity” is enshrined in the Treaty of Rome, and if a national jurisdiction has authority over and investigates cases, even if they do not prosecute, then the case may be inadmissible to the ICC. The ISAF forces are unlikely to be prosecuted at the ICC if their actions are reviewed and evaluated for prosecution by the respective national authorities.
The ICC has jurisdiction only for cases occurring after July 1, 2002. This would leave out the soccer stadium massacres of the Taliban regime. The alleged executions by the forces of General Dostum of Taliban prisoners also fall outside the temporal jurisdiction of the court.
Who then will be charged? There are incidents involving ISAF forces where civilians were either targeted or incidentally killed. If there is no military prosecution, would the ICC attempt to prosecute? The Taliban’s campaign of terror and attacks on civilian targets would be one possibility, but establishing command responsibility may be problematic. For the time being, the ICC has five situations, all in Africa, all in nations contiguous to each other. There has been great political pressure to bring a prosecution outside of Africa, and Afghanistan certainly meets that description. Who though would be prosecuted, and would the Office of the Prosecutor bring cases which test the meaning of Complentarity by charging ISAF troops?
Guinea is likely to be the next situation added now that the post-election violence in Kenya has been approved by the court as an investigation. Whether or not Afghanistan will be included and who might actually be prosecuted remains to be seen.