The ICC and Afghanistan: New Brief and Overview Products on the Prosecutor’s Request for a Formal Investigation

After completing the preliminary examination into the situation in Afghanistan, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, submitted a Request for authorization from Pre-Trial Chamber III to begin a formal investigation into the situation. The Request was submitted on November 20, 2017 and has been under review by the Chamber in the interim.

When the ICC conducts a preliminary investigation on any country situation, the Prosecutor assesses potential crimes under ICC jurisdiction—crimes against humanity, war crimes, genocide, and aggression—conducted by any party within the territory of the state in question. The Prosecutor said she had found a “reasonable basis” to believe that crimes under ICC jurisdiction had been committed by individuals within three distinct parties in the situation, including:

1. crimes against humanity and/or war crimes by the Taliban, Haqqani Network, and affiliated armed groups;
2. war crimes by members of the Afghan National Security Forces (ANSF), particularly members of the National Directorate for Security (NDS) and the Afghan National Police (ANP);
3. and war crimes by members of United States of America (US) armed forces in Afghanistan and members of the Central Intelligence Agency (CIA) in “black site” detention facilities in Afghanistan and on other State Parties’ territories, specifically in Poland, Romania and Lithuania.

The Prosecutor asserts that the specified charges and incidents presented in the Request meet both the ICC’s threshold for gravity (severity) of the crimes and also complementarity (requirement for deference to domestic courts), due to a lack of relevant national proceedings against individuals viewed as most responsible for the gravest crimes. These senior individuals with the most command and control over specific plans or policies that bring about such crimes are the focus of ICC investigations and trials. This means that senior level American officials in the Department of Defense or CIA connected to war crimes named in her Request could potentially have arrest warrants and charges against them if this formal investigation is approved—the specific incidents and individuals of interest remain confidential at this point.

The Rome Statute that created the ICC states that the Court has jurisdiction over crimes committed either within the territory of a state party by any persons, or by nationals of a State Party. Afghanistan is a State Party, so the ICC has jurisdiction over crimes committed on its territory. The CIA is accused of detaining alleged participants in or individuals with alleged ties to armed groups involved in the conflict in Afghanistan and transferring detainees from Afghanistan to black sites in Eastern Europe. The crimes in question at CIA sites in Poland, Romania, and Lithuania are within ICC jurisdiction because the activities took place within the territories of these three states that ratified the Rome Statute. This framework also prevents the ICC from investigating treatment of any Afghanistan-related detainees in Guantanamo Bay, Cuba, because neither Cuba nor the United States is a State Party to the ICC.

We anticipate that the Pre-Trial Chamber may announce its determination in the coming months. Given the thoroughness of the Prosecutor’s report and the strongly asserted reasonable basis for crimes relevant to an investigation, we expect that the Pre-Trial Chamber will approve her request.

For more information, AMICC recently published two reference documents that offer both a short synopsis and lengthier overview of the Office of the Prosecutor’s Request. 


Written by Amanda Schmitt