For Afghans, International Justice Day is little cause for celebration

The Day of International Justice is celebrated globally every 17 July as part of an effort to recognise an emerging system of international criminal justice.

It celebrates the establishment of the International Criminal Court (ICC), a court that human rights activists fought long and hard to create and that was adopted in 1998 with the Rome Statute.

The ICC was set up to investigate and try individuals charged with the "gravest crimes of concern to the international community: Genocide, war crimes, crimes against humanity and the crime of aggression."

As a permanent, independent and international court, the ICC was meant to signal that no one is above the law. It was intended to be a court that victims could turn to, should justice elude them domestically. 

Afghanistan has experienced decades of war, marked by successive and relentless periods of conflict since 1978. In 2018 alone, the UN reported a record 11,000 recorded civilian deaths. Another UN report indicates that a large number of cases of alleged human rights violations involve senior state officials.

Similarly, crimes of torture linked to the conflict in Afghanistan, allegedly committed by United States (US) armed forces and CIA officials in what are known as the black sites and in Guantanamo Bay, remain unpunished.

Torture, the oppression of women and girls and suicide attacks have become daily feature of life in Afghanistan, with renewed fears that the Taliban could upset the fragile gains that women have made in the last 18 years.

There is little to celebrate in Kabul

This is compounded by the fact that on 12 April 2019, judges at the ICC refused to allow the Prosecutor to investigate international crimes allegedly committed by the Taliban, the Afghan National Security forces, US armed forces and the CIA.

The judges said that such an investigation would not be in "the interests of justice".

When Afghanistan against all odds, joined the ICC in 2003, there was a glimmer of hope for victims

When Afghanistan against all odds, joined the ICC in 2003, there was a glimmer of hope for victims, given the low likelihood of domestic prosecutions.

In 2007, the then ICC Prosecutor Louis Moreno Ocampo announced that he was conducting a "preliminary examination" into the "situation" of Afghanistan.

This means that the Prosecutor would examine: whether war crimes, crimes against humanity and genocide had been committed in Afghanistan; if there had been any domestic accountability; the gravity of these crimes; and the interest of victims.

It took 10 years for the ICC prosecutor to conclude that an investigation in Afghanistan was warranted, taking into account the parameters identified above.

At the ICC, the Prosecutor, in order to proceed with an investigation had to receive authorisation from a bench of ICC judges. Similar requests have been made in relation to the situations in Kenya, Côte d'Ivoire, Georgia and Burundi.

In all these cases authorisation was granted in a relatively short time. The situation of Afghanistan has proven to be different.

In addition to the unprecedented and inexplicable delay in rendering a decision, the judges ultimately rejected an investigation in Afghanistan, reasoning that an investigation would be against the "interests of justice".

Despite agreeing with the Prosecutor that there was reasonable basis to believe that crimes within the ICC's jurisdiction had been committed and these crimes were of sufficient gravity to warrant an investigation, the ICC judges took into account a number of factors including: the lengthy period which the preliminary examination had taken, state cooperation, the availability of evidence and surrender of potential suspects, and budgetary considerations, to argue that an investigation was not in "the interests of justice".

The ICC was meant to signal that no one is above the law

It is difficult for victims to imagine how an ICC investigation in Afghanistan would not serve the interests of justice. 

Groups such as the International Federation for Human Rights (FIDH) have argued that the unprecedented levels of impunity, lack of redress and complexity of the conflict in Afghanistan is exactly what the ICC was created to address in the first place.

On 11 July 2019, FIDH, and two NGOs including Armanshahr/OPEN ASIA and the Afghanistan Transitional Justice Coordination Group (TJCG) filed amicus curie submissions.

Read more: Eighteen years after 9/11, what's going on in Guantanamo?

These filings assist a court by offering information, expertise, or insight that has a bearing on the issues in the case, stating that a weak domestic judicial system, collapsed state institutions and limited access to justice mean that for the vast majority of Afghan victims, the ICC remains their last bastion of justice. 

They further said that Afghans remain expectant that an investigation by the ICC will at the very least have a deterrent effect and help to curtail the incessant cycles of impunity and criminality in the country.

A politically charged situation

Afghan civil society has labeled the decision of the ICC not to open an investigation in Afghanistan as "being motivated by political elements" and asked the ICC not to "ignore the rights of the victims of Afghanistan for political reasons."

It is difficult for victims to imagine how an ICC investigation in Afghanistan would not serve the interests of justice

Arguably the involvement of the US and its ongoing "War on Terror" that was proclaimed following the September 11 attacks adds a significant layer of complexity, meaning that the question of accountability in Afghanistan is extremely politically charged.

In March this year, the US secretary of state, Mike Pompeo, said Washington would revoke or deny visas to ICC staff seeking to investigate alleged war crimes and other abuses committed by US forces in Afghanistan or elsewhere.

ICC Prosecutor Fatou Bensouda said on 5 April that her US visa had been revoked.

While the decision by the ICC judges has been appealed by the Prosecution and victims' legal representatives, the quest for justice in Afghanistan remains unfulfilled.

The ICC, a court of last resort, effectively decided to throw in the towel and turn its back on the tens of thousands of Afghan victims who had expressed their overwhelming support for ICC investigations into what seems to be a never-ending war.

One can justifiably wonder if there will be a single Afghan citizen celebrating International Justice Day this year.

For the vast majority of Afghan victims, the ICC remains their last bastion of justice

Ironically, it is perhaps the perpetrators of crimes such as torture, rape and murder who will be the only ones celebrating the occasion, safe in the knowledge that they are shielded by the decision of ICC judges not to open an investigation in Afghanistan.

Indeed, as stated by President Donald Trump soon after the rejection of an  Afghanistan investigation "This is a major victory …for the rule of law."


Amal Nassar is a Jurist working as Representative of the International Federation for Human Rights to the ICC. Follow her on Twitter:@AmalNassar_

Guissou Jahangiri is Vice-President of the International Federation for Human Rights and the Executive Director of Armanshahr Foundation/OPEN ASIA. Follow her on Twitter: @guissoujahangir

Anushka Sehmi is an international criminal lawyer, currently practicing before the International Criminal Court with the Victims Representatives in The Prosecutor v Dominic Ongwen. Follow her on Twitter: @anushkasehmi

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.