The Prosecutor’s Report on the Preliminary Examination of Activities explained that in 2001, the US invaded Afghanistan in response to the terrorist attacks that Al Qaeda operatives conducted in Washington, D.C., and New York City. The US entered Afghanistan and attacked the Taliban-led Government because it accused the Taliban of harboring Al Qaeda, who claimed responsibility for the attacks. UNSC Resolution 1386 established the International Security Assistant Force (ISAF), which brought NATO forces into Afghanistan. While NATO and the US ousted the Taliban by December 2001, the conflict spread from southeast Afghanistan to the capital, Kabul.
In 2007, the Office of the Prosecutor made the preliminary examination of the Afghanistan situation public. The Prosecutor determined that the Afghanistan conflict is a non-international armed conflict between pro-Government forces comprised of the Afghan Government, supported by the US and ISAF forces, and the anti-Government forces, including the Taliban and the Haqqani Network. In 2016, the Prosecutor found that there was a reasonable basis that: 1. the anti-Government forces committed crimes against humanity and war crimes, 2. Afghanistan’s intelligence agency and National Police committed war crimes of torture and ill treatment, and 3. the US’s Central Intelligence Agency committed war crimes of torture and ill treatment.
On November 20, 2017, the Prosecutor requested the Pre-Trial Chamber’s authorization to begin an investigation into crimes against humanity and war crimes in Afghanistan. Based on the preliminary investigation, the Prosecutor believes that there is sufficient evidence that the fighting parties committed grave war crimes and crimes against humanity, and no national jurisdiction is undertaking an investigation.
The Prosecutor determined that the investigation’s scope includes war crimes and crimes against humanity since May 1, 2003 in Afghanistan, and war crimes that are closely linked to the Afghan armed conflict in the territory of other State Parties since July 1, 2002. In the Preliminary Investigation, the Prosecutor reported alleged war crimes when pro-Government forces captured and transferred Taliban and Al Qaeda members from Afghanistan to territories, such as Poland, Lithuania, and Romania. Additionally, the Prosecutor explained that she is considering complementarity and acknowledging national courts’ efforts to address crimes she may recommend to the Pre-Trial Chamber.
Although the US is not a State Party to the Rome Statute, the ICC may have jurisdiction due to Afghanistan, Poland, Lithuania, and Romania being State Parties. This is because the crimes alleged against the US, specifically torture and ill treatment, occurred in the territory of these states. The Prosecutor has not submitted her official request yet, but said she would file her request “in due course.”
Office of the Prosecutor, Report on Preliminary Examination Activities para. 195 (Nov. 14, 2016), available at https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf.
Office of the Prosecutor, The Prosecutor of the International Criminal Court, Fatou Bensouda, Requests Judicial Authorisation to Commence an Investigation into the Situation in the Islamic Republic of Afghanistan (Nov. 20, 2017), available at https://www.icc-cpi.int/Pages/item.aspx?name=171120-otp-stat-afgh.
Alex Whiting, An ICC Investigation of the U.S. in Afghanistan: What does it Mean?, Just Security (Nov. 3, 2017), available at https://www.justsecurity.org/46687/icc-investigation-u-s-afghanistan-mean/.
Paul Seils, Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes 29, International Center of Transitional Justice (2016), available at https://www.ictj.org/sites/default/files/ICTJ_Handbook_ICC_Complementarity_2016.pdf.