by Kyra Wigard, Guissou Jahangiri, Zia Moballegh
When the Prosecutor of the International Criminal Court (‘ICC’ or ‘Court’) opened a public preliminary examination into the situation in Afghanistan in 2007, expectations were high and unprecedented. [Afghanistan has been a State Party to the International Criminal Court (ICC) Statute since 10 February 2003. In relation to the crimes committed in the context of the armed conflict in Afghanistan that were allegedly committed on the territory of other States Parties, the Rome Statute entered into force on 1 July 2002 for Poland and Romania and on 1 August 2003 for Lithuania].
Much hope was invested in the opening of the process of possible ICC proceedings, as Afghanistan and its people were hoping to turn the page on one of the worst chapters of their history: the Taliban terror and years of civil war. Until then, the focus of the newly found Court had been mostly on African countries and investigations into individuals alleged to have committed the gravest crimes were also limited to Africans. When the 2016 annual Preliminary Examination report of the Office of the Prosecutor (‘OTP’) stated that a decision on the finalization of the preliminary examination of Afghanistan would be made “imminently”, civil society actors reinforced their efforts to press for a comprehensive investigation into the situation and the need for the ICC to make a decision as soon as possible. [The conclusion of the Preliminary Examination report on Afghanistan states: “The Office is concluding its assessment of factors set out in article 53(1)(a)-(c), and will make a final decision on whether to request the Pre-Trial Chamber authorisation to commence an investigation into the situation in the Islamic Republic of Afghanistan since 1 May 2003, imminently.” Office of the Prosecutor, Report on Preliminary Examination Activities (2016), para. 230].
They undertook frequent missions to the Court’s seat in The Hague to participate in open and closed meetings with representatives of the Court, but also with representatives of States Parties, journalists, and other stakeholders. However, the word “imminent” became the topic of much discussion when, with the start of the 2017 summer recess, the Prosecutor still had not made a decision. Finally, on 7 November 2017, the ICC Prosecutor announced she would request the Pre-Trial Chamber (‘PTC’) to authorise the opening of an investigation. On 20 November 2017, she filed the request to open an investigation into the alleged crimes committed by several actors in Afghanistan, including international forces (members of the US forces and of the CIA), Afghan authorities, and members of the Taliban and affiliated armed groups. [See Public redacted version of “Request for authorisation of an investigation pursuant to article 15”, 20 November 2017, ICC-02/17-7-Conf-Exp].
After the OTP publicly notified its request to open an investigation into the Afghanistan situation, the ICC pre-trial judges gave victims from 20 November 2017 until 31 January 2018 to submit “representations”, that is to share their personal views, as individuals or groups, on the opportunity of the opening of an investigation and its scope as defined by the OTP. Afghan and international NGOs working on crimes in the Afghanistan situation and in support of victims of these crimes have been solicited by the Court to reach out to victims and collect their views and information about their identities and victimisation in a very short period of time, including the OPEN ASIA/ Armanshahr Foundation, the Transitional Justice Coordination Group, International Federation for Human Rights, and the Center for Constitutional Rights. The process was complicated, stakeholders being confronted with many challenges throughout the victim representation stage. Despite these challenges, victim representations on behalf of a great number of victims were submitted by 31 January 2018, with an overwhelming majority in favour of the Prosecutor’s request to open an investigation. [See for example: Kathy Gannon, “Afghans submit 1.17 million war crimes claims to international court”, The Independent, 17 February 2018].
Despite the short time period in which victims were able to submit representations, it is possible to deduce a number of key challenges and conclusions related to the interaction between the ICC and victims and their legal representatives. The record numbers of victims that have interacted with the Court at this early stage in the situation of Afghanistan provide all stakeholders with invaluable lessons that should guide them through the next phase, should an investigation be authorised. [For the purpose of this paper and as a result of the representation stage, the focus is primarily on victims in Afghanistan,and the diaspora to a lesser extent].
The Decade-Long Preliminary Examination
The opening of an ICC preliminary examination in 2007 served as a first step to change the narrative that dominated the armed conflict in Afghanistan. After 9/11 and the involvement of international forces in the armed conflict in Afghanistan, much focus was put on the escalation of violence and terror, but very little attention was paid to possible avenues of accountability for those committing war crimes and crimes against humanity. In 2007, the situation was confusing as peace was announced, but the war continued and foreign troops were occupying the country.
Even if in 2007 many people did not know about the Rome Statute and their government’s obligations to it, the general population believed that a transitional justice process needed to be on the agenda. [See David Knaute, How and why truth and justice have been kept off the agenda; A literature review on transitional justice in Afghanistan, Armanshahr/OPEN ASIA Report, Nov 2015].
That year, the Afghan Parliament also passed the National Stability and Reconciliation law, “to prevent the prosecution of individuals responsible for large-scale human rights abuses in the preceding decades. The amnesty law states that all those who were engaged in armed conflict before the formation of the Interim Administration in Afghanistan in December 2001 shall “enjoy all their legal rights and shall not be prosecuted.” [Human Rights Watch, “Afghanistan: Repeal Amnesty Law”, 10 March 2010].
In this context, expectations from the ICC became even more significant from the outset of the preliminary examination. It was seen as a mechanism of last resort in the absence of any political will in Afghanistan to deal with the past and the present crimes.
It finally took a new Prosecutor (Fatou Bensouda took office in 2011) and a decade-long analysis to consider whether the situation in Afghanistan would warrant a full ICC investigation. By 2017, the OTP had received a total of 125 communications pursuant to Article 15 of the Statute in relation to this examination. [Office of the Prosecutor, “Report on Preliminary Examination Activities 2017”, 4 December 2017, para. 230]. Shortly after the Prosecutor filed the request in November 2017, the Pre-Trial Chamber informed the Registry that victims had until 31 January 2018 to “provide their views, concerns and expectations, to the ICC Judges that are considering the Prosecutor’s request”. [This process commenced pursuant to Regulation 50 of the Regulations of the Court on 20 November 2017 and ended on 31 January 2018, the deadline set by the ICC Judges for victims to submit representations. To help facilitate this process, the Victims Participation and Reparations Section (“VPRS”) of the ICC Registry prepared a template representation form which was available on the ICC website during the process, in a number of languages, until 31 January 2018].
Simultaneously, from December 2017 onwards, Afghanistan also entered its most violent year since the start of the conflict in 2001 and the “deadliest recording year for civilians”. [See also CNN, ‘Deadliest recorded year for Afghan civilians’, 2018].
The UN Assistance Mission in Afghanistan (UNAMA) reported that 1,692 civilians were killed during the first six months of 2018 – “the most recorded in the period over the last decade since the agency began documentation”. [The UN Assistance Mission in Afghanistan (UNAMA) reported that 1,692 civilians were killed during the first six months of 2018 - the most recorded in the period over the last decade since the agency began documentation (Aljazeera, Afghanistan: Civilian deaths hit record high, says UN, 15 July 2018)].
The climate in Afghanistan has therefore not improved much since the opening of a preliminary examination a decade ago. In fact, it could be argued that the situation has gotten much worse. It is in this climate of continued conflict in Afghanistan that the victim representation stage took place. The ICC Registry also reported “that the […] challenges represent a significant reason for low levels of victim representations in comparison to the vast number of victims in the country.” [Annex I, Red to the Final Consolidated Registry Report on Victims’ Representations Pursuant to the Pre-Trial Chamber’s Order ICC-02/17-6 of 9 November 2017 (‘Annex 1’), ICC-02/17-29-AnxI-Red, 20 February 2018, para. 13].
Despite these enormous challenges, victims still overwhelmingly stated they were in favour of the opening of an ICC investigation in Afghanistan and submitted their representations.
A Two-Month Long Victim Representation Stage
Article 15 (3) of the Rome Statute allows for the possibility for victims to make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence, to complement the Prosecutor’s request in any way they seem fit. The victim representation stage in the case of Afghanistan was vastly different from the last situation in Georgia with a similar victim representations phase. [With regard to Georgia, the Pre-Trial Chamber received the representations by or on behalf of 6,335 victims on this matter. International Criminal Court, “ICC Pre-Trial Chamber I authorises the Prosecutor to open an investigation into the situation in Georgia”, 27 January 2016].
Indeed, the representation stage in the situation in Georgia was shorter (limited to 30 days), but victims were already organised to some extent as a consequence of cases filed at the European Court of Human Rights, for example. In addition, the ICC investigation in the context of an international armed conflict in Georgia has a temporal scope of roughly three and a half months. For victims in Afghanistan, this was therefore not only an opportunity to share their views and concerns, but it was an important step to influence and nourish the focus and scope of OTP possible investigation. The information submitted in the representations to the judges forms a first step in establishing a direct line between victims and their legal representatives and ICC judges. The significance of this step cannot be overstated: in the case of Georgia, for example, victims’ representations led the pre-trial judges to expand “the scope of the investigation to include additional crimes allegedly committed within the jurisdiction of the ICC.” [Including sexual violence, arbitrary detention of civilians, and torture of prisoners of war. Nika Jeiranashvili, “The Georgian Experience: A Story of How the ICC is Failing Victims in its First Case Outside Africa.”, 10 May 2018, IJ Monitor].
The Registry created a special representation form for Afghanistan for victims and their legal representatives. Both individuals and groups of victims could use this form and the Registry made the form available online to be submitted either online or via post. Guidelines as to how to fill out the form were also made available on the Court’s website. The Registry made the form and guidelines available in English, Dari, Pashto, and Arabic until 2 February 2018. [Annex I, Para. 6.].
The Pre-Trial Chamber ordered the Victims Participation and Reparation Section (‘VPRS’) of the Court to “(i) identify, to the extent possible, the community leaders of the affected groups to act on behalf of those victims who may wish to make representations; (ii) receive and collect victims’ representations, be it collective or individual; (iii) conduct a preliminary assessment, as set out in this order, whether the conditions set out in rule 85 have been met; and (iv) transmit incoming representations on a rolling basis, possibly every two weeks, together with a brief preliminary assessment.” [Pre-Trial Chamber III, “Order to the Victims Participation and Reparation Section Concerning Victims’ Representations”, ICC-02/17-6, 9 November 2017.].
Due to a lack of resources, no field presence in Afghanistan, and security constraints, further outreach by the Court to interact with victims was extremely limited. As a result, and notwithstanding the PTC order, the VPRS of the Court relied heavily on the support of a number of intermediaries of key civil society actors to reach out to victims during the representations phase rather than having its own “active” general outreach strategy. [VPRS also specified in Annex 1 its “targeted approach”, rather than opting for and facilitating general outreach activities such trainings on the ICC and the representation process. Annex I].
At that point, civil society in Afghanistan was facing two significant obstacles in the country. One was the climate created by the prevailing “peace” agenda, which had been carefully engineered and separated from justice discussions. This agenda appeared primarily focused on a ceasefire and a non-transparent deal with the Taliban and separated the discussion from any form of transitional justice and victim-oriented initiatives. [This meant for example that the Afghanistan Independent Human Rights Commission (AIHRC) mapping of conflict was banned from being issued and published].
The “peace” agenda discourse and inaction both by the government and its institutions alongside its international political and funding allies had created an extremely difficult environment for NGOs in Afghanistan. The second obstacle was to raise awareness about the ICC process and mobilise the communities with extremely limited resources and limited space for civil society, as many NGOs could never muster financial support to reach out to the people. It proved difficult to put the victim representation process on anyone’s agenda in Afghanistan. A group of committed organisations and individuals who cofounded the Transitional Justice Coordination Group played a pivotal role during this phase in reaching out to victims in Afghanistan as well as to those in the diaspora all over the world.
In total, 686 representations were introduced on behalf of approximately 6,220 individual victims and a further 12 representations were introduced by individuals and by organisations on behalf of approximatively 1,163,950 victims and 26 villages. Finally, another representation was submitted by an organisation reportedly on behalf of approximatively 7 to 9 million people. [See Final Consolidated Registry Report on Victims’ Representations, para. 28-29].
3. Key Challenges in the Interaction between Victims and the Court
One of the main challenges faced by both victims and the Court was the security situation in Afghanistan. Interacting with the Court as a victim during this phase could pose serious security risks to individuals and their families and communities. Similarly, it was difficult for the VPRS to interact directly with victims in Afghanistan due to their security situation and possible risks. This is also reflected in the final VPRS report, where victims, for example, voiced fears of retaliation and concerns for their identity being discovered due to them naming specific events and/or attacks. [Annex I, para. 46]. In turn, there were also challenges for civil society actors in Afghanistan trying to encourage victims to submit representations.
Another challenge was the lack of outreach done by the Court. In their final report, VPRS identified “that without a visible Court presence in Afghanistan and in the Afghan media, there was no clear voice on behalf of the Court to fill the vacuum in national and local media.” [Annex I, para. 12]. Outreach in Afghanistan is all the more vital now that the situation in the country makes it more difficult for people to have access to information. Not only is there often no (or no stable) internet connection, but there is also little knowledge among local media about the Court, which made outreach during this short phase almost impossible in the different parts of the country. VPRS also reported these infrastructural challenges. It was highlighted that “limited internet access, geographical distances and difficulties in accessing remote areas, especially considering the season in which the Article 15 process took place, had a negative impact on the number of victims reached.” [Annex I, para. 12].
The representation phase also laid bare some linguistic challenges. Not only are there different official languages in Afghanistan (Dari and Pashto), there is also a high level of illiteracy in the country that made it sometimes impossible for victims to fill out a representation form. VPRS also identified this as a factor potentially leading to low numbers of victim representations. [Annex I, para. 12. The literacy rate in Afghanistan is estimated at about 31% of the adult population (over 15 years of age) according to the UNESCO Office in Kabul, Enhancement of Literacy in Afghanistan (ELA) program].
Especially women in Afghanistan are disproportionally affected by illiteracy, which could have had an impact not only on the number of representations, but also on the types of crimes reported. In addition, the overwhelming majority of representations (over 90%) has been presented by or on behalf of men and the Registry noted that “out of the 165 individual representations, only 10 were introduced by or on behalf of women.” [Annex I, para. 35]. Furthermore, it noted that women, despite clearly having suffered harm as per the information submitted in the representations, in some cases were not listed as victims on behalf of whom the representations were submitted.” [Annex I, para. 35, footnote 25.].
Violence against women and children has been consistently underreported in Afghanistan and sexual and gender-based violence against women, girls, and boys has been largely unrecognised in national judicial fora, while it is a specific priority for the OTP. [See the OTP’s Policy Paper on Sexual and Gender-Based Crimes: “The Office pays particular attention to the commission of sexual and gender-based crimes at all stages of its work: preliminary examination, investigation, and prosecution. Within the scope of its mandate, the Office will apply a gender analysis to all crimes within its jurisdiction, examining how those crimes are related to inequalities between women and men, and girls and boys, and the power relationships and other dynamics which shape gender roles in a specific context.”, Executive Summary under, 4, June 2014]. The representations illustrate the lack of awareness of these crimes as crimes that fall within the Court’s jurisdiction and the need for more attention especially for this group of victims.
Another challenge that came to light is of a cultural nature. The VPRS reported that “according to the observations of organisations met by the Registry, the concept of victim in Afghanistan is in most cases understood to only cover victims of murder.” [Annex I, para. 24]. Most of the representations submitted were collective and often only referred to victims of murder. [An example of this would be a family or community that would submit a collective representation covering the murder of a family member by an armed group and identifying that murdered family member as a victim. This representation would therefore exclude any other type of harm the other family members may have suffered as a result of this murder]. Furthermore, the VPRS identified a “low understanding of criminal justices processes and little awareness of international justice processes” and “low levels of trust in judicial institutions”. [Annex I, para. 12 (v-vi)].
The common thread running through these challenges for victims in this Article 15 process was the limited time period during which they were able to submit their views to the judges. Yet, victims in Afghanistan had more time compared to the situation in Georgia where victims were given 30 days. [30 days is also the time period in accordance with rule 16 of the Rules and regulation 50(1) of the Regulations. For the Georgian Victim Representation phase, see ‘Report on the Victims’ Representations Received Pursuant to Article 15(3) of the Rome Statute’]. Even though this period is in line with the Statute and the Rules, the challenges that follow from this limited time period became extremely clear in Afghanistan, even though victims were given an extension until 31 January. The time limit of the representation phase, therefore, can be identified as a factor in all the other challenges identified in this article. Yet, it should be pointed out that there had been no outreach activities by the Court prior to this phase. On a practical level, this entailed that a considerable amount of time of representation stage had to be used to explain notions such as: the existence, purpose, and jurisdiction of the Court; the preliminary examination; what a possible investigation would and could cover; what types of crimes the OTP can investigate; what a “victim” is in the meaning of the Rome Statute; who could be investigated and prosecuted; etcetera.
The representation stage as a whole showed that the interaction between most victims and the Court during this phase was a direct consequence of the cooperation between the VPRS and intermediaries of key civil society actors in and outside Afghanistan. The victim representation phase therefore clearly stood on itself and was only able to build on the direct advocacy efforts by civil society actors, like Armanshahr/OPEN ASIA, TJCG, and others, in the period preceding the Prosecutor’s request. The combination of challenges posed an unprecedented task for the Court to interact with victims and the lack of ‘readiness’ before the representation phase to interact with victims offers some valuable lessons to take into account if an investigation in Afghanistan is opened.
Despite these challenges, an overwhelming majority of the victims’ representations indicated support for an ICC investigation in Afghanistan. The Registry identified that the main motivating factors for victims were: “investigation by an impartial and respected international court; bringing the perceived perpetrators of crimes to justice; ending impunity; preventing future crimes; knowing the truth about what happened to victims of enforced disappearance; allowing for victims’ voices to be heard; and protecting the freedom of speech and freedom of the press in Afghanistan.”[Annex I, para. 39]. Therefore, victims overwhelmingly appealed to this mechanism of last resort to put accountability front and center in Afghanistan, in the absence of domestic political will and ability to deal with the past and the present crimes.
Conclusion: the Year-Long Pending Request
[As of 26 November 2018, the Prosecutor’s request is still pending, thereby reaching its one-year ‘anniversary’ – an unprecedented time period needed by the PTC to deliberate].
The difficulties in approaching and reaching victims of alleged crimes during the victim representation stage combined with the current security climate in Afghanistan are likely to only offer a glimpse of the challenges faced in the case of an actual investigation, especially when taking into account the surge of violence in 2018 and the attacks dominating the October parliamentary elections. [See for example, BBC NEWS, “Afghanistan election: Voters defy violence to cast ballots”, 21 October 2018; Al Jazeera, “More than 50 people killed during Afghanistan elections: UN”, 6 November 2018].
However, and despite these vast challenges, the record numbers of victims who overwhelmingly voiced their support for the opening of an ICC investigation indicate an unprecedented demand for justice by victims of the ongoing armed conflict in Afghanistan.
The concerns voiced in the submitted representations affirm some complications and they have not been able to reflect on a number of crimes, on different victim communities, on female victims, on sexual and gender-based violence, and on certain regions. Nevertheless, the victim representation stage has already provided the Court and others with some invaluable lessons when it comes to interacting with victims in Afghanistan. The representations stage has illustrated that the ICC had to depend on intermediaries due to limited outreach and no field presence, amongst others, and that cultural tradition will have to be taken into account when investigating different types of crimes.
The, inevitably limited, role the ICC can play in Afghanistan requires careful considerations from the Court, and all other stakeholders, on how to best interact with victims at any stage, also pretrial. The victim representation stage has laid the groundwork for this interaction between the Court and victims providing all with some key lessons. Moving forward, it should, therefore, be a priority that a meaningful reciprocal relation is nourished and the victim representation stage can serve as a foundation when it comes to victims and their legal representatives. [In the case an investigation is authorised. ].