On 12 April 2019, the Pre-Trial Chamber III of the International Criminal Court rejected the request to open an official investigation on war crimes and crimes against humanity in Afghanistan brought forward by the ICC’s Office of the Prosecutor led by Fatou Bensouda. After ten years of preliminary investigations, the Office of the Prosecutor had determined that there is a reasonable basis to believe that the following categories of crimes within the Court's jurisdiction have occurred:
- Crimes against humanity and war crimes by the Taliban and their affiliated Haqqani Network;
- War crimes by the Afghan National Security Forces ("ANSF"), in particular, members of the National Directorate for Security ("NDS'") and the Afghan National Police ("ANP"), and
- War crimes by members of the United States ("US") armed forces on the territory of Afghanistan, and by members of the US Central Intelligence Agency ("CIA") in secret detention facilities in Afghanistan and on the territory of other States Parties to the Rome Statute, principally in the period of 2003-2004.
Open letter to judge Rosario Salvatore Aitala
It is perhaps unfair to single you out in what was a unanimous decision, but I am addressing you as a compatriot, as an Afghan-Italian to express my sincere disappointment on the decision that you, together with judge Tomoko Akane and presiding judge Antoine Kesia Mbe Mindua of the Pre-Trial Chamber III, adopted in relation to the International Criminal Court’s investigation of war crimes and other serious crimes perpetrated in Afghanistan since May 2003. While it is easier for me to address a single person within the institution, it goes without saying that when I say “you” in what follows I refer to the Pre-Trial Chamber III and its decision, not you as an individual.
While you agreed that the Afghanistan case, brought by the Office of the Prosecutor, satisfies both the Court’s jurisdiction and admissibility requirements, you nonetheless rejected the Prosecutor’s request to open an investigation on the basis that it would not serve the “interests of justice”. This vague phrase seems to mean, in your decision regarding Afghanistan, that the current circumstances of the country will not permit an effective investigation and prosecution of cases within a reasonable time frame. You mention lack of availability of evidence for crimes dating as far back as a decade ago, volatility of political climate that would result in non-cooperation of authorities and lack of resources as the main factors that have informed your decision. In stating this you claim that the investigation would not be “feasible”. I am not a lawyer so I trust former prosecutor Luis Moreno Ocampo and other respected legal scholars when they pull apart your arguments saying, inter alia, that the criterion of “feasibility” does not appear neither in the Rome Statute, nor in the 2007 OTP Policy paper on the “interests of justice”. Furthermore, you conclude that a decision to open an investigation will not lead to a meaningful participation of victims in the process, and that it will not go “beyond little more than aspiration”.
In simple words, your decision translates, as noted also by Luis Moreno Ocampo, that political considerations trump legal requirements. That the international justice regime conveniently tolerates impunity in order to safeguard the interests of the hegemonic powers and their political priorities. In short, as Kevin Jon Heller states, your decision to reject an investigation in Afghanistan only on the grounds of the “interests of justice” is “profoundly, irremediably, and dangerously wrong”.
Adding to this, let me briefly remind you that justice has different demands – and, yes, different “interests” – when examined from the bottom-up perspective. I have been researching transitional justice, with an empirical focus on war victims in Afghanistan, for the last decade that also included the completion of a doctorate in criminological sciences at the University of Leuven in Belgium. I recently returned from a work mission to Afghanistan. While in Kabul, I had the occasion to visit the long-overdue and much applauded Afghanistan Center for Memory and Dialogue (ACMD), and share my PhD research findings (from end of 2017) with Afghan civil society organizations, war victims and Kabul-based academics. Inaugurated in February 2019 by the Afghanistan Human Rights and Democracy Organization (AHRDO, of which I am an advisory board member), ACMD is the first effort of its kind – after 40 years of ongoing armed conflict in Afghanistan – to memorialize the innumerable victims of war crimes and other human rights abuses. In particular, the curators have collected the personal items of 4000 war victims. Bequeathed by relatives and family members, blood-stained clothes, books, letters, toys and other belongings are now housed in individual “memory boxes” that have finally found their new home at the ACMD. Collected over the course of 8 years owing to the tireless efforts and commitment of individual members of AHRDO, the items represent the four distinct phases of conflict in Afghanistan: the Soviet invasion (1979-1989), the intra-Afghan civil war (1989-1996), the Taliban regime (1996-2001) and the post-Taliban, Karzai-Ghani governments (2001-present). The evidence collected in the Afghanistan Center for Memory and Dialogue, together with countless other documentation in Afghanistan, alone could provide any investigation with many sources to verify and substantiate facts.
Unlike the experiences of many other countries suffering from violent conflict, where some measures of justice – even if only symbolic – have been underway, war victims in Afghanistan have been utterly denied of their right to truth, fair trial, reparation and other forms of justice. I hesitate to call it transitional justice, as it is often referred to, because of the shameless continuity shown by one regime after another in their disregard of war victims. In the absence of official initiatives – even a modest Action Plan for Peace, Reconciliation and Justice was shelved by the Karzai administration and his foreign sponsors in 2009 – the inauguration of the ACMD is in many ways remarkable. It is an open space not only for memory but also for dialogue for families of war victims, civil society activists, academics and visitors. In fact, it has been visited and praised by several diplomats and personalities. Even Dr. Sima Samar, the head of Afghanistan Independent Human Rights Commission since 2004, seemed moved by the initiative, possibly admitting to herself that what her organization, tasked and funded to institutionally spearhead such enterprises, has utterly failed to do could be accomplished by a small NGO.
As not only an Afghan but also a scholar of transitional justice, I was moved to be at this Memorial center. It seemed to have germinated a seed upon which the sapling of justice could slowly nurture. I distinctly remember a feeling of hope that ACMD, combined with the International Criminal Court’s consideration of Afghanistan, will at least symbolically and marginally respond to some aspects of justice in my country of origin. Alas, your judgment came as a slap in my face days later after this contemplation. Your decision came as a slap in the faces of millions of Afghan war victims, in particular those 699 individuals and collective applicants who often at the cost of risking their lives provided you evidence to make a sound and legitimate judgment. They have walked great distances and emotionally have re-lived some of the most horrifying moments of their existence while testifying and providing statements to the Prosecutor, trusting that a powerful international Court would finally be able to give them some justice, or at least someone willing to listen to them. In fact, you did not question the reliability of the information they provided to the Prosecutor. And yet in your rejection you state that with a bound-to-fail investigation, “victims' expectations will not go beyond little more than aspirations” and, worse, “would result in creating frustration and possibly hostility vis-a-vis the Court”. With due respect for your role and position, I am sorry to say this sounds quite patronising. Let war survivors decide what they think is best for themselves and their interests about justice. They wanted an investigation and the Pre-Trial Chamber rejected it. Suggesting that it was for their own good amounts to the Afghan popular saying of putting salt to one's wound.
Perhaps it was our mistake to put faith in your Court. Your decision is yet another reminder that institutions such as the ICC, the legitimacy and functionality of which have been questioned by a number of legal and transitional justice scholars, cannot be a real hope in the horizon for justice. Justice will have to remain a bottom-up struggle where victims’ interests and demands should trump political considerations.
According to the former ICC prosecutor, Mr. Ocampo, you have introduced a criterion of feasibility nowhere to be found in the Statute. If this is the case, I will also take a similar creative license regarding the interpretation of article 53, stipulating that under no circumstances the Court should slap justice in the face. I am afraid that your decision was precisely an infringement of this provision; it was a slap in the face of justice.
[Solon was] already engaged in public business and the compilation of his laws; which, when Anacharsis [the Scythian] understood, he laughed at him for imagining the dishonesty and covetousness of his countrymen could be restrained by written laws, which were like spiders’ webs, and would catch, it is true, the weak and poor, but easily be broken by the mighty and rich.
– A study of the life of the Athenian lawgiver Solon, by Plutarch (translated by John Dryden)