The terrible human toll exacted by the war in Afghanistan since 2001 has been documented by Afghan and international human rights organizations and the UN. Civilian casualties alone (killed or injured) have been around 10,000 per year for the past decade, many of them victims of unlawful killings and other violations of the law of armed conflict. Yet, for these actions, impunity has long reigned virtually supreme. Only last year were there some signs of serious commitments to investigating and prosecuting.

The International Route to Justice

The International Criminal Court (ICC) in March 2020 finally authorized its Prosecutor to open criminal investigations of Afghan and US nationals for having committed war crimes, including torture against civilians as well as combatants and crimes against humanity. The Prosecutor, Fatou Bensouda, prepared to investigate: (i) the Taliban and associated armed groups; (ii) on the government side: members of the Afghan National Police, the National Directorate of Security, and the regular armed forces; and (iii) members of the US armed forces and the CIA for alleged war crimes committed in Afghanistan as well as Poland, Lithuania and Romania – countries  that the CIA used as interrogation sites in its “rendition” program for some time. The Prosecutor held open the possibility of casting the net wider as her investigation proceeded.

The wheels of justice have been grinding at a slow pace. The Prosecutor initiated a preliminary examination in 2007. After examining the matter for ten years, she requested permission from the Court’s Pre-Trial Chamber to commence a formal investigation. In 2019, the Chamber denied the request, arguing that the “interests of justice” would not be served: the parties concerned were unlikely to cooperate with sufficient information to make prosecution succeed. Undaunted, Bensouda pushed ahead with an internal appeal. This the Court approved last year.

The road ahead is long as well. While a party to the Court, the Afghan government has tried to delay the international process on the grounds that it has commenced national judicial proceedings for war crimes.  The claim has been met with scepticism. Another concern is the recently started peace talks between the Taliban and the Afghan government. Pursuing perpetrators of war crimes allegedly committed by the negotiating parties will at best complicate already difficult talks.

The US has not ratified the ICC, but its nationals can be indicted in absentia for violations of the Rome Statute if committed in a member state. The Biden administration may be less hostile than Donald Trump, who responded to the March 2020 announcement by imposing sanctions on Court employees. Yet the new administration must have noticed that the Prosecutor aims for institutional criminal accountability, promising to investigate those who “developed, authorised or bore oversight responsibility” for interrogation techniques amounting to torture, which it alleges members of the US armed forces and the CIA used in Afghanistan and on its “rendition” sites. Even absent US cooperation, the Prosecutor can utilize information already in the public domain, notably the US Senate 2014 report on the CIA’s use of torture.

The National Route

Late last year the Inspector-General of the Australian military released a report that found “credible information” that Australian Special Forces in Afghanistan had unlawfully killed 39 civilians and detainees and cruelly treated two persons. It recommended criminal investigation.  

The report creates a dent in the heavy armour of impunity that has long protected the international forces in Afghanistan. The 4-year inquiry, led by Major-General Paul Brereton, was triggered by some brave whistle-blowers and hastened by dogged media investigation. Once the information could not be contained, the military leadership recognized that a process of accountability would affirm professional standards and protect the institution. A possible arrest warrant from the International Criminal Court reinforced the commitment to investigate. 

The government has strengthened its investigative and legal capacities to prosecute war crimes. Yet, even in this case, the road to justice is long and slow, and successful prosecution is by no means assured.  Some of Brereton’s witnesses may not wish to be cross-examined in court. Most of the cases are already almost 10 years old, making it difficult to unearth additional evidence. While identifying 25 perpetrators, the report recommends criminal investigation against only 19 where initial evidence is considered sufficiently strong to hold up in a civilian court. Some defendants are expected to plead mental health defenses due to long and multiple deployments. The process is expected to take several years.

Prosecution will probably focus on the individuals at the operational level. The Brereton report pins legal responsibility on the agents of violence or on decision-makers who exercised effective control over them. Military and civilian leaders at higher levels only have moral responsibility, it concludes.

The “Interests of Justice”

The Afghanistan Independent Human Rights Commission has called on the US and UK to follow the Australian example and investigate their forces in Afghanistan for possible war crimes. The Commission singles out the UK Special Forces as persons of particular interest, but the British government has introduced legislation to make prosecution of war crimes more difficult. The US has pursued exceedingly few cases so far and is unlikely to change.  Quite possibly, the investigations underway in Canberra and The Hague may be the beginning and the end of war crimes proceedings anchored in international humanitarian law for this period of Afghan history.

Will the “interests of justice” be served? The ICC’s Pre-Trial Chamber initially reasoned that international proceedings would be unlikely to land successful prosecutions. It would, however, be costly in terms of money and damage the status of the Court by raising unrealistic expectations. The Chamber consequently concluded it would not be in the “interests of justice”. National proceedings operate in a different legal and political landscape, but here also the uncertainties and limitations are marked. Yet the decisions to initiate judicial proceedings indicate that authorities on both levels have reasonable expectations that at least some prosecutions, in the end, will succeed; in that sense as well as in other ways, the “interests of justice” will be served.