Thread by @Afghan_Policy

Given that the #ICC's Appeal Chamber will be hearing oral arguments on #Afghanistan appeal case next month, I wanted to share some thoughts on the implications for #AfghanistanPeaceProcess & intra-Afghan Talks.

icc-cpi.int//Pages/item.as…

The ICC Pre-Trial rejected the original case based on the unprecedented argument that the investigation did not fulfil 'interest of justice' criteria (para 89). icc-cpi.int/CourtRecords/C…

In layman terms, the Court thought that given it was unlikely to prosecute U.S. personnel in ICC, it was not worth opening an investigation.

Previously the U.S. had threatened to arrest ICC judges if they pursued Americans for #Afghan war crimes
f24.my/3Z7j.T

Already the ICC President has asked to recluse himself from the Appeal

There is also talk that potentially the Appeal Chamber will allow the Appeal against the Afghan govt and #Taliban while rejecting investigating U.S. forces based on argument that a UN Security Council resolution is needed for investigated a third party

Not only does this argument contravene the very case law of the Court itself, but it also would defeat the entire purpose of conducting such an investigation.

There is no doubt that U.S. & ISAF forces have also been involved in various international crimes in #Afghanistan

Some latest examples being 👇

“They’ve Shot Many Like This” hrw.org/report/2019/10…

And 👇

AFP investigating alleged Australian war crimes in Afghanistan abc.net.au/news/2019-09-2…

The U.S. however is not alone. Evidence suggests that both pro-Government forces and anti-Government forces have committed war crimes and crimes against humanity.

icc-cpi.int/afghanistan

Interesting that Prosecutor also claims that crimes against humanity also committed. In the context of non-state actors, proving such a crimes requires the following factors:
1. Established hierarchy or responsible command;

2. Means to carry out widespread & systematic attack against a civilian population;
3. Group exercises control over part of the territory of a state;
4. Group has criminal activity against a civilian population as a primary purpose; and

5. Group articulates explicitly or implicitly an intention to attack a civilian population;

I think both ISKP & Taliban would be seen to fulfil these criteria due to their systematic targeting of government officials (generally viewed as civilians from perspective of IHL)

However, I pointed out in a previous threat, Afghanistan acceded to Rome Statute in 2003. Since the Rome Statute does not apply retrospectively, only crimes committed from 2003 onwards fall under purview of the Court.

This combined with possibility of U.S. forces not being investigated under a flimsy legal argument, would mean that the Court would be undertaking a one-sided (investigating some parties only) and partial (post-2003 only) investigation.

There is also the philosophical yet practical consideration that prosecutions alone, rarely acts as a deterrent.

For example, the ICTR (Rwanda Tribunal) only ever convicted 61 suspects despite fact that almost a 1 million people were killed.

The sad truth is that, proceedings in a far removed venue (Hague) that takes years to complete and only convicts a handful of people cannot, practically, serve as a deterrent or bring justice.

It is therefore imperative that any possible Peace Deal incorporates a comprehensive mechanism for bringing reprieve to those that suffered atrocities over past 40 years. Such mechanism would need to combined retributive and transitional justice approaches.

Low & mid-level officials from all sides, that committed war crimes and crimes against humanity would need to be brought before national courts. This approach would be consistent with the ICC's new approach of (generally) investigating mid level officials

justsecurity.org/64153/icc-pros…

And given that international crimes are not barred by statutory limitations, this approach offers opportunity to address crimes committed from 1970s onwards rather than being limited to post-2003.

But as argued earlier, prosecutions alone, cannot provide justice. Any peace deal needs to incorporate further measures such as establishing truth commissions to allocate blame and provide a measure of closure to victims.

Compensations should also be considered.

The ICC, despite it flaws, offers a unique opportunity for all sides of the conflict to address the injustices of past 40 years and help #Afghanistan heal its wounds. Else these same actors might find themselves at the wrong Stand of an incomplete & impartial judicial process.