Side Event – “Challenges and Prospects on the ICC's Horizon: Afghanistan, Myanmar and More” (co- hosted by the American Bar Association and the International Federation for Human Rights (FIDH))

Overview by Emma Bakkum, Senior Research Associate PILPG NL 


  • The panelists agreed on the importance of the ICC’s involvement in both the situation in Afghanistan and Myanmar/Bangladesh. 

  • Grave crimes committed in Myanmar, PILPG’s report Documenting Atrocity Crimes Committed Against the Rohingya in Myanmar referred to. 

This side event, organized by the American Bar Association (ABA) and the International Federation for Human Rights (FIDH), focused on the challenges and prospects on the ICC’s horizon, specifically focusing on the preliminary examinations into the situations in Afghanistan and Myanmar/Bangladesh. Christopher Hale moderated the discussion by a panel of distinguished speakers. 

Ambassador Stephen J. Rapp started by reflecting on the U.S. perspective and policy towards the ICC. While the threatsmade by U.S. national security advisor John Bolton against the ICC worry many, ambassador Rapp emphasized the support the U.S. has historically showed towards the ICC, referring to its cooperation in the transfer of Bosco Ntaganda and Dominic Ongwen to the ICC. Ambassador Rapp stated that the extreme view of Bolton has in history been rejected before and highlighted that the U.S. has always been a leader in establishing international institutions. Therefore, Ambassador Rapp is confident that Bolton’s stance towards international criminal justice will be rejected in the U.S. He added that focus should also be on national efforts and referred to the conviction of Sergeant Robert Bales for war crimes committed in Afghanistan in 2013. 

Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, provided background information into the ongoing preliminary examination in Afghanistan. The Prosecutor of the ICC, Bensouda, requested authorization from the Pre-Trial Chamber III to start an investigation into alleged war crimes and crimes against humanity in relation to the armed conflict in Afghanistan since 1 May 2003 as well as regarding other crimes that have a nexus to the armed conflict in Afghanistan and are sufficient linked to the situation and were committed on the territory on other state parties (e.g. Romania, Lithuania, Poland) to the ICC since 1 July 2002. This request was made on 20 November 2017, making it the longest pending decision of its kind before the ICC. While the investigation into Afghanistan consists of three parts, crimes against humanity and war crimes by the Taliban and affiliated networks, war crimes committed by Afghan forces, and war crimes committed by the U.S. military and CIA, Gallagher focused on the last. 

She stated that complementarity and admissibility are not an issue of concern for the Pre-Trial Chamber since no senior U.S. official has ever been prosecuted and no efforts have been made to do so.  On top of that, there is evidence of the U.S. government trying to close down any investigation in foreign national courts. According to Gallagher, the case of Afghanistan is right to be at the ICC. 

She continued by talking about her work as representative of two of the victims of the crimes committed in Afghanistan under the scope of the preliminary investigation. She emphasized the difficulty with providing victim statements within the timeline of Nov 20th-21stJan 2017, when bombings were going on in Afghanistan. To have no response more than a year later is a great disappointment to her and the victims. 

Later during the panel discussion, Gallagher also asserted that many practical issues must be worked out if an investigation is opened. One issue is contact with victims that are held in Guantanamo Bay. Less practical, but not less important, the ramifications of the threats from John Bolthon against the ICC must be understood: what did he mean when he threatened companies? Generally, Gallagher concluded, it is going to be an extremely difficult case, both for lawyers or prosecutors, and the global support of States Parties is needed to insulate the Court. Ambassador Rapp added, in similar sentiment as his previous statement, that accountability in the U.S. will depend on the U.S. system itself. Stating his own position, he concluded that the appropriate thing for any administration is to appoint a special counsel for the specific case.

After discussing Afghanistan, Kate Vigneswaran, Senior legal advisor at the International Commission of Jurists, continued with the situation in Myanmar. She elaborated in detail on the findings of the fact-finding mission (FFM) for Myanmar, established in early 2016. The FFM concluded that crimes against humanity and war crimes were committed in Myanmar. An investigation into genocide was warranted. Recommendations (in September 2018) included a UN Security Council (UNSC) referral to the ICC and, until the UNSC acts, the creation of an independent evidence gathering mechanism, similar to the mechanism for Syria. In response, a resolution was issued by the Human Rights Council to establish such a mechanism, for which the Terms of Reference are expected in two weeks. 

Vigneswaran expressed hope that the Pre-Trial Chamber ruling of 6 September 2018 on ICC jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh will result in the filing of an application soon. The Pre-Trial Chamber decided that the ICC has jurisdiction in cases where one element of the crime or part of such a crime was committed on the territory of a State Party, in this case Bangladesh. In addition to deportation, this rational could be applied to other crimes, such as persecution and torture. The Pre-Trial Chamber decision, however, does not apply to the many other crimes committed solely in Myanmar. 

Akila Radhakrishnan built on this when asking the audience to think about what justice means for Myanmar. Myanmar has faced a range of crimes for a very long time. The constitution of Myanmar enshrines impunity for the military. This framework must be taken into account when considering what the limited jurisdiction of the ICC can do, Radhakrishnan underlined. There is no real identified place for these cases to be transferred to, she continued, unlike with the III Mechanism for Syria that concerns viable jurisdiction cases. Therefore, she calls upon a full UNSC referral. 

While Radhakrishnan mentioned some of the challenges the investigation into Myanmar is facing (such as access in to country, gathering evidence, cooperation), she called the steps of the ICC important for pressuring the government, to “see if we create a crack in impunity”. Nevertheless, she explained that the pursuit of justice for Myanmar has to be broader and look at other venues for justice.                              

Discussing U.S. engagement with regard to the situation in Myanmar, Radhakrishnan indicated that the U.S. government has continued to use human rights language and “said the right things”, but that no concrete action to enable accountability has been seen yet, also mentioning the recent publication of PILPG’s report Documenting Atrocity Crimes Committed Against the Rohingya.

Micheal Greco, still with a focus on the U.S., therefore looked at the role of civil society and the legal community within current geopolitics. The American Bar Association (ABA), as well as other civil organizations, are vital for holding governments (including the U.S. government) accountable and for advocacy and educational purposes. 

Continuing with the situation in Myanmar, moderator Christopher Hale asked whether the jurisdiction of the ICC over the deportation of the Rohingya from Myanmar to Bangladesh is too limited. Kate Vigneswaran considers the decision on jurisdiction as an absolute positive development. While it does demonstrate a gap: crimes committed solely in Myanmar, by other groups, fall outside the jurisdiction of the Court. Kate herself would hesitate to be too cynical as she stated that we have a come a long way and that because something is happening, expectations are increased. Akila Radhakrishnan added that most of the frustrations are political: the inability of the UNSC and political work arounds. Ambassador Rapp closed the topic by stating that what is happening around the situation in Myanmar is encouraging.  

From the audience, the Counsel on Rohingya issues from the Government of Bangladesh issued a warning for the problems with witness contamination in refugee camps in Bangladesh. Kate Vigneswaran agreed that this is a concerning issue, mentioning the large amount of interviews done by PILPG for its report. The Counsel of the Government of Bangladesh and Vigneswaran moreover agreed that Myanmar appears to be concerned with the investigation of the ICC.