In a long overdue ruling, the International Criminal Court (ICC) on Thursday ruled that prosecutors can open an official inquiry into alleged war crimes and crimes against humanity in Afghanistan by the Taliban militants, the U.S. troops and government forces.
The chamber delivered its judgment in the prosecutor’s appeal against Pre-Trial Chamber II’s decision which had rejected in April last year the request to investigate alleged war crimes and crimes against humanity in the war-ravaged country, according a statement by the court following its ruling.
Judge Piotr Hofmański, the presiding judge in this appeal, read a summary of the Appeals Chamber's judgment in open court.
"Having considered the Prosecutor's grounds of appeal against the Pre-Trial Chamber's decision, as well as the observations and submissions of the Islamic Republic of Afghanistan, representatives of victims and other participants, the Appeals Chamber found that the Pre-Trial Chamber erred in considering the 'interests of justice factor' when examining the Prosecutor's request for authorization to open an investigation," the court said in the statement.
In November 2017, ICC Prosecutor Fatou Bensouda requested to open an investigation and January 2018, victims were invited to make direct representations to the ICC, or to answer a questionnaire. However, the Pre-Trial Chamber rejected the request to open an investigation.
A preliminary analysis has three elements: first, the prosecutor assesses whether crimes may have been committed that fall within the ICC’s jurisdiction and whether the possible crimes are grave enough to merit ICC attention (the ICC’s ‘gravity threshold’).
Second, the prosecutor needs to show that the state itself is not willing or capable of prosecuting the crimes itself (the ‘complementary test’). Third, the prosecutor should show there are no reasons why the case would not serve the ‘interests of justice’ (a negative interest of justice assessment).
Noting that the Pre-Trial Chamber's decision contained all the necessary factual findings and had confirmed that there is a reasonable basis to consider that crimes within the ICC jurisdiction have been committed in Afghanistan, the Appeals Chamber decided Thursday to authorize the opening of an investigation itself, rather than to send the matter back to the Pre-Trial Chamber for a new decision.
The Appeals Chamber found that the Prosecutor is authorized to investigate, within the parameters identified in the Prosecutor's request of 20 November 2017, the crimes alleged to have been committed on the territory of Afghanistan since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation in Afghanistan and were committed on the territory of other States Parties to the Rome Statute since 1 July 2002.
Earlier, in a decision made public on Apr. 12 last year, the judges agreed with the prosecutor on two counts: that there was sufficient evidence that war crimes and crimes against humanity that fall under the ICC’s jurisdiction may have been committed and that neither Afghanistan nor the United States (as a party to the Afghan war), were willing or able to prosecute these crimes. However, they disagreed with the prosecutor’s interpretation that an investigation would serve the interests of justice.
Afghanistan ratified the Rome Statute in 2003, which is therefore when ICC jurisdiction in Afghanistan begins.
The country's Independent Human Rights welcomed the development as a welcome news for Afghanistan and justice for victims of the war.
"Gratitude to victims who submitted testimonies and brave Afghan organizations and activists who advocated fearlessly and tirelessly for this outcome", said Shaharzad Akbar, head of the rights group, in a statement.