Flashback
The judges of the Pre-Trial Chamber play an important role in the first phase of judicial proceedings at the International Criminal Court, including whether to authorise requests by ICC Prosecutors to proceed with investigations. In April 2019, the judges of the Pre-Trail Chamber (hereafter, ‘the judges’) turned down a request, made in 2017 by the previous prosecutor, to investigate alleged war crimes committed in Afghanistan or in the context of the Afghan conflict: she had named the Taleban, the Haqqani network, the United States military and CIA, and the then government’s security forces. The Appeals Chamber reversed that decision in March 2020. However, before an investigation could begin, it was suspended by a deferral request from President Ashraf Ghani government that same month and submitted it under article 18(2) of the Rome Statute.
Ghani’s administration argued that the court’s intervention was not required because there were active domestic investigations into some of the alleged war crimes and crimes against humanity that the ICC was considering. One of the court’s fundamental principles, as defined in the ICC’s core legal texts, is the principle of “complementarity,” which holds that primary jurisdiction lies with the state on whose territory the alleged crimes were perpetrated. To support its request, the Afghan government submitted thousands of pages of information in Dari and Pashto relating to around 180 cases it claimed were being investigated. Our understanding was that the request, and particularly its heavy load of translation, was aimed at slowing down the court’s work and that it had little real merit – see AAN’s report on Appeals Chamber’s decision here and on Afghanistan’s deferral request here and here.
Karim Khan, the ICC Chief Prosecutor, was still considering Kabul’s deferral request when the Ghani government was forcibly ejected from power by the Taleban in August 2021. In September 2021, about a month after the fall of the Ghani government, he said that his team had not reached “a final determination” on whether to accept the supporting information as reasonable evidence of genuine domestic prosecutions or not. According to him, “further clarifications were still required for a relatively large proportion” of the information provided by the Afghan state.
Nevertheless, on 27 September 2021, he requested that the judges accept an expedited decision to reopen the court’s investigation into war crimes in Afghanistan “notwithstanding the Deferral Request.” Khan explained that it was due to “the significant change of material circumstances” since August 2021, the laws and policies of the fallen regime, including the mechanisms Afghanistan had established to prosecute war crimes domestically, were no longer in place. He argued that neither the Taleban, as the de facto rulers of the country, nor those who represent Afghanistan abroad were “any longer able” to prosecute the war atrocities which come under the court’s scope of investigation. These facts, he said, “are not reasonably subjected to dispute.” (See AAN’s 2021 report about his request here).
Khan requested the judges to rule “[o]n basis of an expedited procedure,” perhaps due to concerns about destruction of evidence by the Taleban, whose leaders would be one of the primary suspects in the investigation. Khan’s sense of urgency may also have been motivated by disquiet about the ongoing commission of war crimes in the country; on summary executions after August 2021, see Human Rights Watch reports here and here, Amnesty International reports here and here, on an attack on the Sikh community in Kabul, see a Radio Azadi report here and on attacks on Hazaras and Shias, see AAN’s report here.
Khan’s request was controversial. He proposed that because of the “the limited resources available” to his office, he would only to investigate the alleged war crimes of the Taleban and ISKP. By implication, this would mean a deprioritisation of the crimes attributed to the US military and CIA and the former government’s security forces. His predecessor, it should be noted, had concluded that there were reasonable grounds that the United States military and CIA had “resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape” and the Republic’s national security forces, …the war crimes of torture and cruel treatment, outrages upon personal dignity pursuant to article, and sexual violence (quotes from her 2016 Preliminary Examination Report; AAN analysis here).
Khan’s request to deprioritise the alleged war crimes of the former government and especially of the US military and CIA was a bombshell to victims and human rights advocates alike. To them, AAN reported, it looked like he was creating a “hierarchy of victims.” Many hoped the judges would revert to authorising the wider investigation. Instead, there have been ten months of waiting with, as yet, no decision. The hold-up stems from the old government’s request to defer the investigation.
Since the Prosecutor’s request, there were ten months of back and forth by the judges as they sought to identify the competent Afghan authorities before ruling on the request. Then, on 22 July 2022, they ordered the Prosecutor to provide them “any material received from Afghanistan in support of the [Afghanistan] Deferral Request” and “an assessment of the Deferral Request, or any other relevant observations and information,” by 26 August 2022. The assessment should also include “evidence to substantiate [the Prosecutor’s] assertions, in particular as the lack of ongoing domestic proceedings or the inaction of the authorities currently represent Afghanistan.”
Rule 54(1) of the ICC Rules of Procedure and Evidence, one of the core legal texts of the court, obliges the judges to themselves examine the supportive information provided by the state requesting a deferral before deciding whether or not to reopen the deferred investigation. However, in the Afghanistan case, as the Prosecutor has argued, the laws, policies and mechanisms for domestic proceedings which were established by the former regime are no longer in place following the regime change in August. Therefore, he suggested that the judges could decide his request “notwithstanding” the supportive information provided by Ghani’s administration. Khan added in his request that he would share the supportive information if the judges asked for it.
The implications of the judges’ 22 July request are not yet clear, and this report will not dwell on the request. Instead it looks about the judges’ push to find out who Afghanistan’s ‘competent authorities’ now are, who represents the country before the court. How they have gone about that task in the last ten months raises questions about whether they have strayed into political territory, but also highlights wider questions about the recognition or not of a government which comes to power in circumstances the countries of the world find problematic.
Afghanistan’s right to observe
For the judges to rule on Khan’s request to authorise an investigation, they need to be assured that the court has informed Afghanistan about its right to make what is called an observation on the Prosecutor’s request, in other words that the State Party has been given the opportunity to express its support or opposition to the request. The problem for the ICC, however, is: ‘Who’ now is Afghanistan?
Since 15 August 2021, the Taleban have ruled Afghanistan as the de facto government, but without being internationally recognised by any state, while the diplomatic missions appointed by the fallen regime have continued to claim they represent the country abroad, including in the United Nations, and the Netherlands where the ICC is based.
The Afghanistan embassy in the Netherlands has been the diplomatic channel between Afghanistan and the ICC since a meaningful relationship between them was established in 2016 (for more on this relationship, read this AAN report). The court and embassy are both located in The Hague city of the Netherlands. As per an agreement with the old government and article 87(1) of the Rome Statute, this is the channel through which the court should deal with Kabul. So for example, the Prosecutor informed the embassy on 3 September 2021 of his intention to request the resumption of the investigation.
Perhaps fearing the issue of who represents Afghanistan could cause delays, Khan suggested in his request that the judges set a deadline for receiving an observation from Afghanistan. If Afghanistan does not file its observation within the deadline, Khan said, the judges should not “abstain from rendering a decision promptly.” Rather they should avoid unnecessary delays in the proceedings.
From the judges’ perspective, it is vital to establish who the competent Afghan authorities are. They explained this in a letter made on 8 October 2021 to the United Nations Secretary-General and the ICC Bureau of the Assembly of States Parties for “information on the identification of the authorities currently representing the Islamic Republic of Afghanistan by Monday 8 November 2021.” The Prosecutor’s request, the judge’s letter said, “cannot… be legally adjudicated without addressing the question of which entity actually constitutes the State authorities of Afghanistan since 15 August 2021.” They said this question is “central to the triggering of the procedure under article 18(2).” The judges built their argument on the court’s complementarity mandate, which means that if a state, as the primary jurisdiction holder, is domestically providing justice to victims, the ICC’s direct intervention is redundant. To implement the principle of complementarity “orderly, meaningfully and effectively,” it is essential, they argued “that there be no uncertainty as to the representation and competent authorities of the concerned State.” They said that “at the heart” of the Rome Statute is article 18, which among other things, gives a state the legal power to stop an ICC investigation if it can prove its ability and willingness to deal with alleged crimes through the domestic courts. Although the Prosecutor is satisfied that the Afghan authorities – whoever they might be – are not able or willing to try the alleged crimes themselves and so wants the judges to dismiss Ghani’s deferral request, the judges are apparently not yet convinced, or at least want to be clear who the competent authorities are before making a decision.
The judges’ letter to show that they are not convinced that the diplomats appointed by the former regime can truly represent Afghanistan before the court. However, they themselves cannot contact the Taleban authorities directly, as that would imply recognition. The judges also said in the same 8 October letter, they believe the decision of who represents a state is of a “political nature” and a matter of “constitutional and international law,” beyond the mandate of themselves, the Prosecutor, or “any organ of the Court’s purview.”
The two institutions did respond, but were of little help. The Bureau of the ICC Assembly of States Parties said, on 26 October 2021, that “due to its nature and functions, it [the Bureau] does not hold the type of information that is requested.” The UN Secretary General, meanwhile, told the judges on 18 October 2021, that the decision of government recognition was not his to make, but was “a matter for individual Member States.” He noted that the UN “General Assembly has not taken any [new] decision on the representation of Afghanistan.” Since then, a Taleban request for recognition from the UN was rejected by the UN Credential Committee, on 1 December 2021. Soon after, on 6 December 2021, the General Assembly agreed to keep the Republic’s Permanent Representative in office, with no end date, thereby ruling out any change on who represents Afghanistan to the UN for now. That means that Afghanistan is still represented by the Permanent Mission of Afghanistan to the UN which was introduced by the fallen Republic.
Nevertheless, the judges pushed on with trying to clarify what for them appears still to be a pressing issue. On 24 February 2022, they issued an invitation for Afghanistan to submit an observation on the Prosecutor’s request. The judges outlined their problem in the letter. Changes of government, they say, “have no impact on the continuity of States” and do not stop the business of the court. While “no state has formally recognised the group which ousted the government of Ashraf Ghani,” as they pointed out, numerous states, the UN and others have held talks and “have officially referred to the group that has seized power as the ‘Afghanistan de facto authorities’ or the ‘de facto government’ of Afghanistan, therefore regarding members of that group as the interlocutors of Afghanistan.” The judges stress that they are seeking observations on the request to investigate so as to “ensure the continuity of judicial proceedings in the most rigorous way.” For these reasons, the judges say:
…the Chamber invites pursuant to rule 55(2) of the Rules Afghanistan to provide observations on the Application for resumption of the investigation, no later than Friday 25 March 2022. Accordingly, the Chamber orders the Registrar to communicate the present order to the authorities currently representing Afghanistan.
The judges appear to have thrown the ball to the ICC’s Registrar, who is the head of the Registry, which manages all the administrative functions of the ICC to contact the relevant authorities. In the same letter, the judge also “invites the Islamic Republic of Afghanistan to provide observations.” If the judges considered them one and the same, it would not have made two requests.
The Afghan ambassador to the Netherlands, Asif Rahimi, did respond privately to the judges, saying that due to “the security and political developments in Afghanistan” in August 2021, he was “unable to provide any further observations or submissions.” This was directly quoted in a confidential ICC report, which was mistakenly uploaded onto the ICC website as a public document for a few days (AAN read the report before it was removed and later received a copy from someone who had downloaded it).
On 7 April 2022, the judges wrote a second request, this time to the UN Secretary-General and to the United Nations Assistance Mission in Afghanistan (UNAMA), asking them to send on their invitation to submit observations to the “authorities currently representing the Islamic Republic of Afghanistan.” They also “reiterate[d] the invitation to the Islamic Republic of Afghanistan to provide observations on the Prosecutor’s Application for resumption of the investigation.” Again there was a strange, double request, both directly to the Islamic Republic of Afghanistan, and to the UN to say who was now representing the Islamic Republic of Afghanistan, all at the same time that the already-agreed channel of communication to Afghanistan, the ambassador, is co-located with the court in The Hague.
Possibly the judges were hoping that someone other than Republic-era Afghan ambassador to the Netherlands, or his counterpart at the UN would respond. This was not to be. On 4 May 2022, the UN Secretary-General forwarded the judges’ invitation to Afghanistan’s Permanent Representative to the UN, who, in an interview with AAN on 20 May 2022 said he had sent his response to the court back through the UN. He had made four points to the judges:
- The Afghanistan embassy in the Netherlands remains Afghanistan’s focal point on matters related to the ICC and Afghanistan;
- On 15 August 2021, the government of the Islamic Republic of Afghanistan collapsed and the Taleban took power by force;
- Taleban rule is neither legitimate nor internationally recognised; and
- The judges should act according to the provisions of the Rome Statute and the Court’s Rules of Procedures and Evidence.
Meanwhile, the Taleban have initiated no communication with the court. This is even though, as well as the invitation for ‘Afghanistan’ to make observations being published on the ICC website, the acting Taleban Foreign Minister, Amir Khan Muttaqi, was informed, unofficially by the Afghan ambassador to the Netherlands of the Prosecutor’s request to investigate and of the judges’ 24 February 2022 letter. This is according to a source at the embassy who spoke to the author in September 2021.
The conundrum of who represents Afghanistan
That the judges wish to be in contact with the competent and rightful authorities of Afghanistan is entirely appropriate. It is also reasonable for them to take the position that it is not in their mandate to decide who represents Afghanistan. However, by disregarding the Afghanistan embassy in the Netherlands as the agreed diplomatic channel between the court and Afghanistan, the judges seem to have made a political determination which may be outside their purview and negate the guidelines of article 87(1) of the Rome Statute which says requests should be “transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party.”
The Afghan ambassador to the Netherlands appears to have interpreted the judges’ communications as an indication that the court regards the Taleban as a competent authority, according to an AAN source in the embassy. It was on this basis that he shared the judges’ invitation with the acting Taleban foreign minister through unofficial communication channels.This communication was discovered by Afghan human rights defenders who asked to stay anonymous for security reasons. They pressured the ambassador to cease communications with the Taleban and instead inform the judges that Afghanistan has no observations to offer on the Prosecutor’s request. As a result, the ambassador wrote to the judges and advised them that he could not provide any observations or submissions in the current circumstances, back to Afghan human rights defenders (communication was shared in a WhatsApp group which the author is a member of). Yet, as was detailed earlier in this report, even after the Afghan ambassador’s reply, the judges sent out their second invitation for observations, on 7 April.
The Prosecutor and the Registrar’s position
In contrast to the judges, the ICC Prosecutor and Registrar both believe the Afghan embassy in the Netherlands is the only appropriate diplomatic channel. In his September request, Khan twice mentioned that he had notified the Afghanistan embassy in the Netherlands about his intention to file the request for a resumption of the court’s Afghanistan investigation per rule 54(2) of the Rules of Procedure and Evidence. A source at the embassy, on condition of anonymity, confirmed the receipt of this communication.
The Prosecutor has, in his September 2021 request, acknowledged that the current ambiguities related to the legal standing of a de facto, unrecognised government mean he “cannot be assured of [his] practical ability to confer with the State authorities in question – for example, due to legal impediments in recognising the credentials of such authorities.” While this highlights the difficulties in direct communications with the Taleban, it also does not necessarily preclude the Taleban from submitting an observation. On another occasion, Khan noted that through public invitation on the ICC website and also the ICC Registry “[t]he Chamber has taken the requisite steps to alert the competent Afghan authorities […], and has provided with sufficient time to provide their observations.” By this, he could suggest that who see themselves as entitled to submit observation to the court (a possible reference to the de facto Taleban administration) were able to see the court’s first invitation on its website and could approach the court if they wished.
Khan may have suggested a way through the impasse the judges appear to have created for themselves when he advised avoiding attempts “to define the de jure and/or de facto authorities in Afghanistan at the present time.” They could instead leave it to the Taleban and the diplomats representing the former regime to decide whether or not to submit observations within an agreed period. This position seems reasonable.
The court’s Registrar has taken the same stance as Khan. On 25 March 2022, he reported to the judges, in confidence, that he had transferred the judges’ 24 February request to the Afghan embassy in The Hague “by way of note verbale,” an unsigned diplomatic note (the confidential report was mistakenly published on the ICC website. AAN has a copy of it). The Registrar added his communication was pursuant to article 87 (1) of the Rome Statute, which states that communication between the court and states should happen through diplomatic channels. The Registrar asserted that “the [Afghanistan] authorities did not designate any other appropriate channel following the ratification of the Statute.”
International law and government recognition
International law says that a government change does not affect a recognised state’s legal status. The ICC judges are certainly aware of this principle, as they quote it in their 8 October 2021 request for advice from the UN and ICC Bureau of Assembly of States Parties’ as to who are now the competent Afghan authorities. Recognition of a new state is different from recognition of a new government. There are a few theoretical provisions for the recognition of a new state in international law, for example, the 1933 Montevideo Convention, but there are no provisions for the recognition of a new government. While the latter is more a political matter than a legal one, it does, nevertheless, have many legal implications, including but not limited to the representation of the state internationally.
Changes in government are common and recognising a new government only becomes an issue if that government comes to power unconstitutionally, especially if it is violent, for example, through a coup d’état, revolution or, in Afghanistan’s case, seizure of power by an armed opposition group. In this case, whether or not to recognise the new de facto authorities is a matter for individual states; the UN itself has no power to decide on this matter, as highlighted in the UN Secretary-General’s first reply to the ICC judges. However, member states of the UN could use the UN Credentials Committee to impose a joint decision on a matter of international recognition, as they have done with the Taleban.
International law has competing doctrines regarding the recognition of unconstitutionally established governments. The Tobar doctrine (later known as the Wilsonian Policy) was articulated at the beginning of the 20th century by Carlos Tobar, Ecuador’s then Minister of Foreign Affairs. It holds that governments that have taken power unconstitutionally should not be granted recognition. Similarly, the Stimson doctrine posits that a territory cannot be acquired purely by aggression. This was articulated by then US Secretary of State Henry L Stimson in response to the Japanese occupation of the Chinese territory of Manchuria in 1931. In contrast, the Estrada doctrine, formulated by Genaro Estrada, Mexico’s Secretary of Foreign Affairs in the 1930s, asserts that recognition of a new government should be based on its de facto existence, rather than on other states’ assessment of its legitimacy. This policy is based on the principle of non-intervention and self-determination, in other words, it is not a matter for other states to decide who rules a sovereign state.
In relation to the Taleban government, members of the UN have followed the Tobar or Stimson doctrines. No state has recognised the Taleban de facto government, which came to power by force after an almost 20-year-long insurgency. Instead, as in UN Resolution 2596, which extended UNAMA’s mandate, the UN Security Council expresses itself in ways that look like it has pre-conditions for the Taleban to fulfil to gain recognised. They are to do with establishing an “inclusive and representative government,” with “full, equal and meaningful participation of women,” upholding “human rights, including for women, children and minorities” and ensuring that Afghan territory is not “used to threaten or attack any country, to plan or finance terrorist acts, or to shelter and train terrorists.”
So far, Taleban policy and practice has opposed such demands promising – shuttering girls’ high schools, for example, and imposing other severe restrictions on the rights of Afghan citizens, particularly women (read AAN’s reports on Taleban restrictions on girls’ education here on freedom of speech here, rules on women’s clothing hereand our analysis of UNAMA’s report on human rights here). Additionally, their supreme leader Hibatullah Akhundzada’s speech to ulema in Kabul on 1 July 2022 told foreigners not to interfere in Afghanistan’s internal affairs.
Victims’ views: “Justice delayed is justice denied”
Always, even in a report about the machinations of the ICC and the complexities of international law, it is important to remember that, fundamentally, this is always about justice. The judges’ ten month search for the ‘competent authorities’ in Afghanistan represents yet another delay for victims. Set against that, in the meantime, the ICC Registry has ended a five-month consultation to collect the views and concerns of victims on the possible resumption of the court’s Afghanistan investigation. This was the second time the court had consulted victims, and is a necessary stage for the judges to give the go-ahead for an investigation or reject if they are not supportive. The first consultation, which concluded in January 2018 as the ICC Registry reported, found almost universal support from more than 6,000 victims for an investigation (see AAN’s report on the first consultation here).
According to the Registrar’s final report on the second consultation, which was submitted to the judges on 24 April 2022, 11,150 individual victims and 130 families shared their views in 16 representation forms, one from an individual, the rest made collectively. All demanded that the court authorises an investigation. The report quoted victims saying variously that “the ICC is the only court of justice” for Afghan war victims, and the investigation should be “immediately… approved,” “resumed” and “continued.” One victim said: “For many victims of gross crimes against humanity, attaining justice” was the “only way to relieve a small percent of the pain and trauma” they felt. Another submission reminded the court that “justice delayed is justice denied.”
Victims of war crimes allegedly committed on Afghan soil or in Poland, Lithuania and Poland in relation to the Afghan conflict have indeed been waiting a long, long time for the court to act. Afghanistan was in the preliminary examination phase from 2006 to 2017, the period when the Prosecutor reviews whether there are grounds for an investigation, the second longest in the court’s history, after Columbia. The Office of the Prosecutor finally sought authorisation to open an investigation in 2017. There was then a wait of two years while the judges of the Pre-Trial Chamber weighing up her request. In the end, in 2019, they rejected it, arguing that conditions at the time limited the prospects for a successful investigation and prosecution. That decision was overturned, on appeal, in 2020. Then, before an investigation could really get going, it was halted by the Ghani administration filing the deferral request.
Now, the ICC Prosecutor has made it clear he wants to resume an investigation, albeit only into the Taleban and ISKP. Yet, even reaching a decision on that has taken the judges ten months, and counting. They have already shown themselves reluctant to allow this investigation – in their original rejection of the previous Prosecutor’s 2017 request for one. Possibly, what we are seeing now is more foot-dragging, if their reservations remain.
Edited by Jelena Bjelica, Rachel Reid, Roxanna Shapour and Kate Clark
REVISIONS:
This article was last updated on 28 Jul 2022
Afghanistan Peace Campaign
The flag of the fallen Islamic Republic of Afghanistan among the flags of all the state parties at the International Criminal Court in The Hague. Photo taken by Ehsan Qaane in March 2016, but, an ICC spokesperson said, it hangs there still.