16.1 Reflection: The Situation in Afghanistan
Introduction
In August 2021, the Taliban marched into Kabul and once again became the de facto government of Afghanistan, overthrowing the government of the Islamic Republic of Afghanistan which held power from 2004 to 2021. The Taliban takeover came just a little less than two decades after the 9/11 attacks on the Twin Towers in New York that started the US-led ‘War on Terror’ in Afghanistan and beyond. For some, the Taliban takeover marks an end to the conflict: both the US forces and the elected Afghan president departed the country, leaving a security and governance void that the Taliban filled. For others, the relative stability of the first years of Taliban rule is simply a lull in the conflict. Since 1978, Afghans have experienced many phases of conflict, each with its own dynamic of human rights violations and war crimes.Footnote 1
At the time of writing in 2023, there has been next to no accountability for any past crimes in Afghanistan, and few attempts to deal with conflict-related grievances and trauma. In the sporadic peace and power-sharing deals of the past four decades, de jure and de facto amnesty for war crimes and crimes against humanity has been the general rule [Editors’ Note: In January 2025, the Prosecutor applied for arrest warrants for Taliban leaders on the charge of gender-based persecution, including against women, their allies, and LGBTIQ+ persons.].
The aim of this sub-chapter is to contextualise the rewritten decisions of the International Criminal Court (ICC) on the situation in Afghanistan, from a feminist perspective. For the time being, the ICC is the only justice mechanism focusing on Afghanistan. Its engagement is a reminder that there should be no amnesty for war crimes. When embarking on a feminist reflection of the role of the ICC in Afghanistan, it is important to note that while accountability for atrocity crimes has been scarce in Afghanistan, accountability for these crimes have even more seldom included a gender dimension, although this dimension is ever present. Throughout the Afghanistan conflict, women and girls, their appearance and role in society and the family, have been one of the key ideological battlegrounds. The conflict has accentuated and brutalised already existing discriminatory practices, and lessened opportunities to challenge existing gender norms. With men away fighting the war or abroad trying to earn a living, women have been left to head large multi-generational households in complicated and insecure circumstances. The conflict has also changed the lives of men and boys while strengthening and privileging opportunistic and violent forms of masculinity.
Background to the Conflict in Afghanistan
The conflict in Afghanistan started in 1978 with a communist coup that set the stage for the Soviet occupation a year later. By the time Soviet forces withdrew in 1989, the occupation had cost at least a million civilian lives.Footnote 2 The Mujahideen government that was formed after the withdrawal quickly imploded and a new phase of the civil war started. During the civil war over 6 million Afghans sought refuge in neighbouring Iran and Pakistan.Footnote 3 The Mujahideen’s failure to form a centralised state contributed to the birth of the Taliban movement. The Taliban came to power in 1996 and under their regime, women and ethnic and religious minorities were the main targets of serious human rights violations. The Taliban also provided a haven for the Al Qaeda network, and it is believed that the 9/11 attacks against the United States were planned from Afghanistan. Consequently, Afghanistan become the first theatre in the US ‘War on Terror’, with the government of the Islamic Republic of Afghanistan, the United States, North Atlantic Treaty Organization (NATO) forces and a ‘coalition of the willing’ fighting the Taliban and non-state actors.
The ‘War on Terror’ continued until a peace agreement was signed in February 2020 between the Taliban and the US government under the Trump administration. In April 2021, President Biden announced a full US withdrawal from Afghanistan by August of that year, leaving the government of the Islamic Republic of Afghanistan to fend for itself. The Taliban had already, for several years, been the de facto powerholders in much of rural Afghanistan; after the US withdrawal they quickly took provincial capitals and finally the national capital, Kabul. While overrunning cities and districts, the Taliban committed revenge killings of people supportive of the former government, targeted killings and torture of civilians and human rights defenders, and looted civilian properties.Footnote 4
The Afghanistan conflict came at a heavy price. After two decades of war, official reports record the deaths of 47,245 Afghan civilians, 66,000 Afghan forces, 51,191 Taliban and other fighters, 444 aid workers, 72 journalists, and 3,846 US and other fighters from the ‘coalition of the willing’.Footnote 5 These deaths represent but a fraction of the human rights violations and war crimes committed in Afghanistan.
Throughout Afghanistan’s history and the conflict, Afghan women have been used as political tools. The women’s issue has shaped rulers’ political agenda – some seeking to limit women’s rights, some ‘liberating’ them through socialism or liberal democracy. Gender – the role of men and women in society and family – runs across cleavages within Afghan society. However, the politicisation of gender issues has further deepened existing cleavages between the elites and the poor, the educated and the illiterate, the secular and the religious, the Western-oriented liberals and the conservatives.
Besides the political and ideological football that the different factions have played with women’s rights, they have also used women and their bodies as weapons of war.Footnote 6 To protect themselves from attacks, women had to at times unveil and at other times veil.Footnote 7 During the civil war, insecurity and poverty reached record levels; families were forced to sell their daughters into marriages and sexual violence was rampant.Footnote 8 The Taliban’s treatment of women was even harsher. During their 1990s reign, they outlawed women’s public appearance ‘for the sake of their protection’.Footnote 9 They deprived women of a wide range of civil-political, socio-economic, and judicial rights, including freedom of thought and expression, freedom of religion, freedom to travel, and the right to education and work. The group was accused of women’s rights violations, which included stoning, public beatings, execution, arrest, and penalties for inappropriate dress.Footnote 10
Progress was made to improve women’s rights after the 2001 US military intervention and the UN-supported state-building exercise: laws, policies, and institutional practices changed in order to open up opportunities for women. By the time of the collapse of the government of President Ashraf Ghani, a quarter of civil servants across the country were women, women accounted for 36 per cent of media workers, 28 per cent of parliamentarians, and the governors or deputy governors in more than half of Afghanistan’s thirty-four provinces.Footnote 11 Progress was uneven though, and sexual harassment and violence was rampant.Footnote 12 As girls and women are considered to carry the family honour, reporting harassment or violence remained challenging as girls and women often choose not to report so as not to bring shame on the family.
Each phase of the conflict has had its own dynamic of atrocities, while only a handful of perpetrators have been held to account.Footnote 13 To date, all Afghan power-sharing or peace agreements have included direct references to amnesty or have left the issue of legacies of war crimes unaddressed. Although Afghanistan acceded to the Rome Statute of the ICC in 2003, efforts to promote transitional justice have largely failed.Footnote 14
In the post-2001 era, there have been a few exceptions to the culture of silence and impunity for war crimes that has reigned in Afghanistan. A few low-level commanders or commanders who no longer could rely on friends in high places have been prosecuted in Afghanistan.Footnote 15 In the United Kingdom and the Netherlands, there have also been some prosecutions making use of universal jurisdiction.Footnote 16 There is no indication that the Taliban will change the trend of impunity. The possibility of an ICC investigation into war crimes in Afghanistan remains the only accountability mechanism open to victims of the conflict.
Background to the ICC Cases Concerning the Situation in Afghanistan
The Afghan government was an early adopter of the Rome Statute, acceding to it in 2003. At that point there was a lull in the conflict, and the ICC did not have jurisdiction over crimes committed during previous phases of the Afghanistan conflict. That is, adopting the Rome Statute did not seem to have any practical significance for Afghanistan, as the warring decades of the 1980s and 1990s were outside the Court’s remit. The lull in the conflict did not last.
In 2007, the first ICC Prosecutor, Luis Moreno Ocampo, initiated a preliminary analysis into the situation in Afghanistan. It took a decade for the Office of the Prosecutor (OTP) to conclude that crimes meeting the ICC’s gravity threshold had been committed in Afghanistan since the Rome Statute’s entry into force in respect of Afghanistan in 2003.Footnote 17 In its 2016 Preliminary Examinations report, the OTP concluded that there was reasonable basis to believe crimes reaching the ICC threshold had been committed in Afghanistan.Footnote 18 The alleged crimes identified all parties to the conflict, including crimes against humanity and war crimes by the Taliban and the Haqqani Network, war crimes by the Afghan government, in particular the Afghan intelligence agency, and war crimes by the US military forces deployed in Afghanistan. The OTP report provided a detailed account of the crimes, including extensive targeting of civilians, extrajudicial killings, torture, rape, and illegal detention.
The Afghanistan case was not referred to the ICC, rather it was initiated by Prosecutor Ocampo under the proprio motu powers of the Rome Statute. In such cases, a decision by the Pre-Trial Chamber is needed to decide whether to open an actual investigation. Before starting its deliberations, the Pre-Trial Chamber invited victims to share their views on whether an investigation would ‘serve the interests of justice’. The responses showed resounding support for an investigation.Footnote 19 However, the Pre-Trial Chamber decided to go against the OTP and the victims’ recommendations. In 2019, the Pre-Trial Chamber declined to authorise the investigation, holding that although the jurisdiction and admissibility tests were satisfied, an investigation at this stage ‘would not serve the interests of justice’ because the likelihood of successful prosecutions was too limited.Footnote 20
The ICC’s second Prosecutor, Fatou Bensouda, and victims’ groups successfully appealed the Pre-Trial Chamber’s decision. On 5 March 2020, the Appeals Chamber decided to allow the Prosecutor to pursue an investigation, but few concrete steps were taken in the year before the Taliban takeover.Footnote 21 Shortly after the takeover, the third ICC Prosecutor, Karim Khan, stated that, since the Taliban’s recapture of power, the Prosecutor had decided to continue the investigation but, referring to the limited resources available, he proposed only to investigate crimes committed by the Taliban and Islamic State in Afghanistan.Footnote 22 This new prosecution strategy excluded both the crimes committed by the Afghan intelligence service of the former Islamic Republic of Afghanistan government, as well as by US and other international forces present in Afghanistan during the ‘War on Terror’.
Feminist Reimagining of Select Judgments and Decisions
In this chapter, six authors – Mashal Aamir and Adrienne Ringin, Jill Marshall, Kathryn Gooding, Souheir Edelbi, and Susana SáCouto – have each undertaken a feminist reinterpretation of different aspects of the ICC’s Afghanistan proceedings.Footnote 23 The five legal issues were: (1) the notion of gender-based persecution by the Taliban in the Pre-Trial Chamber’s decision to open an investigation into Afghanistan; (2) the jurisdiction test; (3) the gravity test; (4) the complementarity test; and (5) the interests of justice test. In line with the feminist methodology used for this volume, the authors were asked to write their contributions as if they were ICC judges.
The five legal issues chosen are all central to the ICC’s engagement on Afghanistan from 2007 to 2020. Importantly, however, all the issues pre-date the August 2021 Taliban takeover of Afghanistan. Consequently, the authors are reimagining ICC decisions adopted when the Islamic Republic of Afghanistan, backed by US and other international forces, was fighting the Taliban and other non-state armed groups, not at the time when the Republic has fallen, US forces have left the country, and the Taliban has become the de facto government.
Judge Susana SáCouto: Gender-Based Persecution in Afghanistan
In 2019, the ICC Pre-Trial Chamber accepted the Prosecutor’s submission that there was a reasonable basis to believe that Taliban forces had committed gender-based persecution in Afghanistan.Footnote 24 However, in its decision the Chamber offered no commentary on what that crime involved, and what ‘gender’ means in the ICC Statute. The Chamber’s decision focused on if, based on the Prosecutor’s submission, the Court has jurisdiction and if the cases met the threshold of the Court. The Prosecutor’s submission encompassed alleged crimes committed by all parties to the conflict, including the Taliban and other non-state armed groups, the Afghan government, and the US and other international forces.
In her reimagined decision, Judge Susana SáCouto examines gender-based persecution in the decision through a feminist lens. Judge SáCouto takes as her starting point the Rome Statute’s definition of gender under Article 7(3), which defines gender as referring to ‘the two sexes, male and female, within the context of society’. The definition can be read as an attempt by the drafters of the statute to equate gender with biological sex. Judge SáCouto takes a different view. She makes use of the rules of interpretation, focusing on the ordinary meaning of the terms and their drafting history. In her reinterpretation, she argues that the meaning of gender has evolved since the adoption of the Rome Statute so that its ordinary meaning, when situated in the ‘context of society’, is socially and culturally construed and changeable. That is, what Judge SáCouto does is attempt to show that the ordinary meaning of equating gender with ‘male and female in the context of society’ has changed between when the Rome Statute was adopted and now: in the early 2000s we may have understood the reference as meaning gender equals sex, today we understand gender as a social construction and changeable.
Using this interpretation, Judge SáCouto proceeds to analyse what an understanding of gender as evolving, and as socially and culturally construed, means for the crime of gender-based persecution, and for the ICC’s investigation into crimes committed in Afghanistan. She notes that ‘gender-based persecution includes persecutory acts that are motivated by beliefs, attitudes, and perceptions regarding appropriate social behaviour for males and females’, and concludes that,
having examined not only direct harms to the women and girls targeted by the Taliban, but also the long-lasting adverse impacts of these acts on the ability of victims and their families to subsist and on women’s and girls’ access to critical services and support, this Chamber finds that women and girls in Afghanistan were severely deprived of their fundamental rights.
Judge SáCouto’s analysis differs from the original decision in that she focuses on the definition of gender-based persecution. She seeks to update the ICC’s definition of gender by arguing – successfully so, in our view – that since the adoption of the Rome Statute our common understanding of gender has changed. Her analysis also differs from the original decision regarding the amount of attention given to the gender-based crimes committed by the Taliban. Judge SáCouto places these crimes at the centre. We welcome the shift made by Judge SáCouto’s reinterpretation: it is unusual and refreshing to read such extensive focus on crimes committed towards women in an international criminal law decision.
Judges Mashal Aamir and Adrienne Ringin: The ‘Jurisdiction’ Test in Afghanistan
To open an investigation, the ICC Prosecutor must first establish under Article 53(1) that there are reasonable grounds to believe that crimes within the ICC’s subject-matter jurisdiction were committed. In 2019, the ICC Pre-Trial Chamber ruled that this jurisdiction test was satisfied in relation to the situation in Afghanistan.
Rewriting this decision from a feminist perspective, Judges Aamir and Ringin do not change the decision. As in the real ICC decision, they decide that the jurisdiction test is satisfied, as there is reasonable basis to believe that war crimes and crimes against humanity have been committed. However, the rewritten judgment increases the focus on crimes with a gender-based and sexual nature. Judges Aamir and Ringin have used public sources to include more and different violations to the list of crimes within the scope of the investigation. Their account provides an overview of gender-based and sexual violence committed by all parties to the conflict, including rape of men and women, torture and threats of torture focused on genitalia, forced nudity, and other forms of degrading treatment. What the increased attention to gender-based and sexual crimes starkly shows is the deeply gendered and sexualised nature of the conflict, and the brutality of all parties to the conflict.
The fact that Judges Aamir and Ringin focus not only on violence by the Taliban, but also on how members of the Taliban have been treated when detained by the security forces of the Islamic Republic and international forces, is relevant also for the current situation wherein the Taliban are the de facto government of Afghanistan. The recorded brutality of the Taliban in and out of government clearly includes extreme violations of international criminal law. However, as this judgment makes clear, they are not the only ones to have committed atrocities; indeed over the past decades attention to the crimes committed against Taliban members by international forces have been cursory at best. Judges Aamir and Ringin’s feminist analysis therefore contributes to a levelling of the playing field: violations by all parties to the Afghanistan conflict get the attention they deserve.
Judge Jill Marshall: The ‘Gravity’ Test in Afghanistan
After the ‘jurisdiction’ test, the ICC Prosecutor must establish that the alleged crimes meet the ‘gravity threshold’ to be authorised to open an investigation. In its 2019 decision, the Pre-Trial Chamber ruled that war crimes and crimes against humanity allegedly committed by the Afghan army and the Taliban within Afghanistan, and by American forces against Afghan detainees, were sufficiently serious to pass this ‘gravity threshold’.Footnote 25 In her decision, Judge Marshall reimagines the ‘gravity threshold’ through a gender lens.
Specifically, Judge Marshall guides the reader through the ICC’s assessment of the gravity of the crimes by all parties to the conflict. The assessment focuses on the scale, nature, manner, and impact of the violations. In contrast to the original decision, Judge Marshall’s decision includes a gender analysis to assess both how the violations have been committed, and what they mean in the context of the Afghan conflict and the discrimination, deprivation, and trauma that they have caused in this situation. This analysis is further strengthened by Judge Marshall in the impact section, underlining the importance of recognising the consequences of living with the experiences of the violations in the broader context of the conflict.
In explicating her decision, Marshall also reflects on the challenge of using feminist analysis while remaining within the limits of what the ICC and legal rules prescribe. Feminism in law, Judge Marshall notes, ‘makes use of the power that law holds, whilst resisting that same power’. Navigating this paradox is not an easy task; it demands making the most of law, without falling into the trap of reproducing patriarchal structures that view Afghan women mainly as victims. Judge Marshall manages this but her judgment points to the balancing act underlying the exercise of feminist reimagination in itself.
Judge Kathryn Gooding: The ‘Complementarity’ Test in Afghanistan
The ‘complementarity’ test must also be satisfied for the ICC Prosecutor to open an investigation. Under this test, the ICC can only investigate and prosecute crimes in the absence of genuine proceedings at the national level. In its 2019 decision, the Pre-Trial Chamber ruled that the crimes of interest to the ICC were not already the subject of genuine proceedings in Afghanistan or the United states, making them admissible to the ICC. Judge Kathryn Gooding’s rewritten decision approaches the complementarity test from a feminist angle.Footnote 26
Judge Gooding argues it is unlikely that either the Afghan or the US judicial system would be able and willing to prosecute the alleged gender-based crimes genuinely. She notes in her decision that, given the record of the current Afghanistan government, it is likely that the proceedings would focus on crimes against the state, and not the many gender-based crimes committed during the conflict. Similarly, Judge Gooding is of the view that, given its record, the US government would most likely not give enough attention to the gender-based and sexual offences committed by US forces in particular. She notes that Afghan law does not adequately recognise sexual and gender-based crimes, and that the United States has demonstrated a lack of political will to prosecute its own soldiers for such atrocities. Therefore, in the view of Judge Gooding, the ICC can jurisdiction. Gooding’s focus is potentially the most radical of the rewritten Afghanistan decisions because it puts gender-based and sexual crimes at the centre of the complementarity test. Given the history of the ICC, this focus still seems like an improbability. By taking this stance, Judge Gooding’s decision is revelatory, demonstrating how marginalised gender-based and sexual crimes remain in the sphere of ICC crimes.
Judge Souheir Edelbi: The ‘Interests of Justice’ Test in Afghanistan
Judge Souheir Edelbi’s feminist redrafting relates to the Appeal Chamber’s 2020 decision on Afghanistan, which focuses on whether the Pre-Trial Chamber erred in its interpretation of Article 15(4) of the Statute when it found itself bound to assess the factors under Article 53(1) (interests of justice test) of the Statute.Footnote 27 The Pre-Trial Chamber’s decision received considerable attention from both the international legal community and Afghan human rights activists.Footnote 28 The Pre-Trial Chamber originally took a very far-reaching interpretation of the interests of justice, allowing it to decide that largely because of the ICC’s financial situation, there was little chance of successful prosecutions in Afghanistan. The Pre-Trial Chamber’s determination that the investigation was not in the interests of justice centred on the ‘availability of evidence dating back so long in time’ (para. 93), ‘the prospects of securing meaningful cooperation from the relevant authorities’ (para. 94), and the ‘significant amount of resources’ required to conduct the investigation (para. 95). As such, pursuing prosecution in Afghanistan was not in the interests of justice. The Pre-Trial Chamber’s decision was overturned by the Appeals Chamber in March 2020.Footnote 29
Judge Edelbi’s rewritten version of that 2020 decision agrees with the Appeals Chamber’s verdict, but takes the decision further. She underscores that the interests of justice test in the Rome Statute is a negative test, and that the Afghanistan investigation is in the interests of justice unless it is clear that potential victims consider that an investigation would harm them. However, Edelbi extends the reasoning, noting that the ICC’s task is a complex one: to provide justice for victims in situations where national avenues for justice are limited or unavailable, but to do this within its own legal system of the Rome Statute that is itself limited and cannot provide real redress for the many victims and many crimes of, in this case, the Afghanistan situation. Judge Edelbi also adds a dimension of meta reflection to her decision, noting that the abstract reasoning of the ICC creates a false sense of detachment and objectivity. While some consider abstraction necessary for judicial decision making, it can be counterproductive to the interests of justice for victims who seek accountability from the Court.
Critical Reflection
Reading the rewritten decisions was an interesting experience for us. First, because they focused much more on gender-based and sexual crimes than the original decisions did. Second, because some of the rewritten decisions broadened the scope from the immediate violations to showing the cost of conflict in terms of lost socio-economic opportunities and the crippling effects of conflict-related trauma. And, finally, because these reimagined judgments focus on violations by all parties to the conflict, not just one side of the conflict. The decision by the ICC Prosecutor to mainly focus on the violations committed by the Taliban over the past two decades gives the impression that a generation of violations have been swept under the carpet. The rewritten statements counterbalance this, emphasising that the past two decades, violations have been committed by the Taliban and other non-state armed groups, but also by the Islamic Republic and its international allies.
Since the late 1970s, Afghans have lived with conflict and/or repressive governments. Women’s rights have been an ideological football throughout the conflict, and the conflict itself has cemented discriminatory attitudes and harmful customary practices. As lamented by a female judge whom one of the authors interviewed several years back, Afghanistan is the only country where the next generation is always more conservative and less educated than the previous one.Footnote 30
For many proponents of transitional justice in Afghanistan, an ICC prosecution is the only remaining hope for some form of accountability. While it is important that the ICC pursues its investigation into Afghanistan, it will take time for the Prosecutor to build cases against specific individuals, and even the most ambitious prosecution strategy would only capture a fraction of the possible cases. While the original preliminary analysis by the Prosecutor focused on alleged crimes committed by all parties to the Afghan conflict, his final decision means that there will be no accountability for crimes committed by the Islamic Republic and its international allies. The decision will also not help the often-voiced criticism that the ICC is a European or Western court, as opposed to a truly international criminal court.
The challenge for any efforts to reimagine ICC decisions on the Afghanistan situation is that they all focus on the time prior to the withdrawal of US forces from Afghanistan, before the fall of the Islamic Republic and the Taliban takeover, and the current period of the Taliban as the de facto government of Afghanistan. The Taliban is of course also an exceptionally misogynistic and brutal regime. A refreshing feature of the rewritten decisions is that all the judges expand the view to focus on alleged crimes committed by all parties to the conflict. Consequently, the rewritten decisions do not fall into the all-too-common trap of (Western) feminist analysis of viewing Afghan women as oppressed victims to be saved by the United States and its allies.
All the rewritten decisions for the Afghanistan situation not only take a more complex approach to the violations suffered by Afghan women, but they also expand the focus of the ICC’s decisions in a few important ways. First, the rewritten decisions focus extensively on sexual and gender-based violations committed by all parties to the conflict, including how sexual humiliation was allegedly part of both the US and the Islamic Republic’s repertoire in detention. The focus on these crimes shows the gendered nature of conflict itself and the extent to which power is sexualised in conflict and that this needs to be recognised and addressed by the ICC and other post-conflict justice mechanisms. Second, the rewritten statements also focus on the broader effects of conflict, making the socio-economic consequences relevant for the contextual understanding of the ICC’s decision. That is, while the ICC may focus only on specific crimes, it is important to understand these crimes in the wider context of conflict. This last point is particularly significant in the case of ICC proceedings on Afghanistan. The ICC is currently the only existing accountability mechanism focusing on Afghanistan, and even in the best-case scenario it will only focus on a fraction of the violations committed over the past two decades. Afghans have faced uncountable violations in a conflict that has been going on for over four decades.
It is interesting to try to do a feminist reinterpretation within law, as these reimagined judgments have done. However, if we think beyond the limitations of the Rome Statute, and provide a meta reflection, the complexities of the Afghanistan case become much more apparent, and it reminds us that law can only ever provide a partial solution. For the sake of the many victims of gross violations, it is also important to recognise that the language of law does not capture the experiences of all those who have suffered. Accountability for gross violations is important, but it very seldom equals justice. It is important that feminist judicial reimaginings are clear about these limitations, while also recognising the need to also look elsewhere to achieve accountability and change.
16.2 The Jurisdiction Test in the Afghanistan Investigation
In 2017, the Prosecutor requested authorisation from the ICC Pre-Trial Chamber to initiate an investigation into alleged war crimes and crimes against humanity committed on the territory of the Islamic Republic of Afghanistan since 1 May 2003.Footnote 31 In 2019, Pre-Trial Chamber II denied that request, stating that such an investigation would not be in the interests of justice.Footnote 32 This decision was subsequently overturned unanimously by the Appeals Chamber in 2020.Footnote 33
In their rewritten version of that 2019 Pre-Trial Chamber decision, Mashal Aamir and Adrienne Ringin reconsider the evidence used to determine the jurisdiction test. As in the real decision, Aamir and Ringin find that there is satisfactory evidence that crimes within the Court’s jurisdiction were committed, but they use the information presented to the original Chamber to further emphasise the satisfaction of the jurisdiction test and thereby centre the lived experiences of victims throughout the decision.
Decision pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan No.: ICC-02/17
Date: 12 April 2019
Original: English
PRE-TRIAL CHAMBER II(B)
Before: Judge Mashal AAMIR, Presiding Judge
Judge Adrienne RINGIN
SITUATION IN THE ISLAMIC REPUBLIC OF AFGHANISTAN
PRE-TRIAL CHAMBER II(B) (the Chamber) of the International Criminal Court (the Court) issues this Decision pursuant to Article 15 of the Rome Statute (the Statute) on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan (Afghanistan).
This request originates from a proprio motu examination conducted on the initiative of the Office of the Prosecutor in accordance with Article 15(1) of the Statute.
History
1. The situation in Afghanistan has been in a state of flux, particularly since the events of 11 September 2001 and the resultant global ‘War on Terror’.Footnote 34 There have been numerous incidents of both brief and protracted conflict within the territory, initiated by various actors. This turbulence has led to continued suffering by the people of Afghanistan. In 2016 alone there was a 66 per cent increase in the number of people fleeing their homes due to conflict, 56 per cent of whom were children.Footnote 35 Indeed, even at this early stage of examination, the Court has received 699 representations on behalf of victims including 668 representations on behalf of 6,220 individuals, 17 representations on behalf of 1,690 families, 13 representations on behalf of several millions of victims including 26 villages, and 1 representation on behalf of an institution.Footnote 36
2. Afghanistan acceded to the Statute on 10 February 2003, therefore accepting the jurisdiction of the Court over Article 5 crimes, genocide, war crimes, crimes against humanity, and aggression committed on its territory after 1 May 2003.Footnote 37
3. The Office of the Prosecutor (OTP) began conducting a preliminary examination of the situation in Afghanistan in 2006.Footnote 38 This led to an official request on 20 November 2017 through the submission of the Request for authorisation of an investigation pursuant to Article 15 (the Request). Through the Request, the OTP petitions the Pre-Trial Chamber
to authorise the commencement of an investigation into the Situation in the Islamic Republic of Afghanistan in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since I July 2002.Footnote 39
4. The OTP has deliberately excluded from the Request acts that occurred on the territory of Cuba, namely at Guantanamo Bay. The Chamber will therefore not make a comment on that topic in this decision.
5. The Request specifies the following actors as those responsible for the crimes committed: (1) The Taliban and other armed groups; (2) Afghan forces; and (3) Forces of the United States of America (US forces) and the Central Intelligence Agency (CIA).Footnote 40
6. The Chamber wishes to emphasise that at this stage of the proceedings, all persons, organisations, and acts mentioned in this decision are alleged and that decisions of other Chambers at later dates will deliberate on the veracity of such allegations.
7. The Chamber draws attention to the implicit assertion made by the OTP that, despite the length of time Afghanistan has endured conflict, there has been a distinct lack of prosecution for the crimes at domestic, regional, and international levels. While it is not the place of this Chamber to make a determination at this stage, and leaving open the possibility for dispute from concerned parties, the Chamber wishes to note that should this allegation be true, then there has been a distinct failure of the international global community in allowing ongoing impunity for such crimes.Footnote 41
Elements of Jurisdiction
8. The test for jurisdiction is satisfied through the fulfilment of three separate checks: ratione loci or personae, ratione materiae, and ratione temporis.
9. To satisfy the jurisdiction test, the OTP has relied on evidence from organisations and bodies such as the following: the United National Assistance Mission in Afghanistan (UNAMA), the Afghanistan Independent Human Rights Commission (AIHRC), Amnesty International (AI), Human Rights Watch (HRW), Physicians for Human Rights (PHR), the CIA, the United States Senate Select Committee on Intelligence, the United States Senate Armed Services Committee, and the United States Department of Defence.
10. While at this stage of the analysis the Chamber is limited to the evidence placed before it, the Chamber notes that it considers the information relied upon to be from reputable sources and therefore, at this stage of the proceedings, there is no reason to doubt the information presented before this Chamber.
11. The Chamber will turn to an analysis of each of these elements in the present application.
Ratione Loci or Ratione Personae
12. Article 12(2) is satisfied should either ratione loci or ratione personae be met, that is, whether the alleged crimes were committed on the territory of a state party by a national of any state, or by a national of a state party on any territory.
13. As Afghanistan is a party to the Rome Statute, ratione loci is satisfied concerning the crimes committed on the territory of Afghanistan by the Taliban and other forces, Afghan forces, US forces, and the CIA.
14. Turning to the crimes committed on the territory of the states parties, the Republic of Poland, Romania, and the Republic of Lithuania, the Chamber notes that the temporal period articulated in the Request is specific to when a non-international armed conflict was occurring. In this way, the Chamber is required to analyse whether there is a sufficient nexus between the crimes and the armed conflict.
15. The Chamber wishes to reinforce that an analysis of each situation will reveal whether sufficient nexus has been achieved. The test is not as simplistic as to whether or not a criminal act occurred on a specific territory of interest. Rather, it is whether the criminal act occurred in the context of and associated with the armed conflict on the specific territory of interest.
16. This interpretation accords with the originating article, Article 3 of the four Geneva Conventions, and subsequently reflected in Article 8 of the Elements of Crime, whereby the nexus requirement is stated as ‘the conduct took place in the context of and was associated with an international armed conflict [or alternatively not of an international character]’. Note the lack of reference to territory.
17. The Chamber therefore agrees with the OTP that ‘the transfer of a detainee outside of a theatre of armed conflict does not render the protections to which he/she is entitled under international humanitarian law inapplicable’ and that the detention and treatment of detainees on the territories of Lithuania, Poland, and Romania after their detention and treatment in Afghanistan does constitute a sufficient nexus.Footnote 42
18. To avoid confusion, this finding does not provide legitimacy, tacit or otherwise, to whether the crimes were committed by any of the parties so far nominated. The Chamber is instead concerned with the correct interpretation of the relevant law. A decision regarding the committal of any offence on any territory will be made by an appropriate Chamber at an appropriate date. Parties concerned may then avail themselves of the Article 19(2) procedure to challenge the question of jurisdiction.
Ratione Materiae
19. For jurisdiction to be satisfied, the subject matter must be categorised as one of the crimes in Article 5: genocide, crimes against humanity, war crimes, or the crime of aggression.
20. The OTP states that, based on the information acquired so far, there is a reasonable basis to believe that incidents amounting to crimes against humanity and/or war crimes have occurred.
21. The Chamber will now examine the information provided.
Contextual Elements of Crimes against Humanity and War Crimes …
22. […] Therefore, the Chamber agrees that that contextual elements of crimes against humanity and war crimes have been satisfied.
Taliban and Other Armed Groups
23. The OTP has limited its application to the conduct of the Taliban and its affiliate, the Haqqani Network.Footnote 43
24. The Request categorises the following crimes against humanity under Article 7 against the Taliban and Haqqani Network: murder (Article 7(1)(a)), imprisonment or other severe deprivation of physical liberty (Article 7(1)(e)), and political and gender persecution (Article 7(1)(h)).
25. The Request further categorises the following war crimes under Article 8 against the Taliban and Haqqani Network: murder (Article 8(2)(c)(i)), intentionally directing attacks against the civilian population (Article 8(2)(e)(i)), intentionally directing attacks against humanitarian personnel (Article 8(2)(e)(iii)), intentionally directing attacks against protected objects (Article 8(2)(e)(iv)), conscripting or enlisting children under the age of fifteen or using them to participate actively in hostilities (Article 8(2)(e)(vii)), and killing or wounding treacherously a combatant adversary (Article 8(2)(e)(ix)).
26. The Chamber recognises, but does not validate, the existence of the Layha, a document utilised by the Taliban and referred to as a type of Code of Conduct.Footnote 44 The Chamber gives no weight to the assertion that such a document negates the formal, institutionalised, and universally approved laws of war.
27. The following acts are illustrative of conduct that the OTP claims the Taliban or the Haqqani Network have declared responsibility for or have been implicated in:
Murder – Article 7(1)(a) and Article 8(2)(c)(i)
(a) In September 2006, Director of Women’s Affairs Safiye Amajan was executed in Kandahar province. Taliban commander Mullah Hayat Khan stated ‘she worked for the government … “We have told people again and again that anyone working for the government, and that includes women, will be killed”’.Footnote 45
(b) In 2010, UNAMA and AIHRC documented 381 assassinations and executions.Footnote 46
(c) In 2016, the Taliban claimed responsibility for 149 civilian causalities from targeted and deliberate killings.Footnote 47
Imprisonment or Other Severe Deprivation of Physical Liberty – Article 7(1)(e)
(a) In 2007, a man was detained by the Taliban for three months, allegedly due to his brother working as a Prosecutor.Footnote 48
(b) In January 2008, a man was abducted by the Taliban and only released after accepting the demand for his wife to cease her teaching job and after the provision of a financial payment.Footnote 49
Political and Gender-Based Persecution – Article 7(1)(h)
(a) The 2009 provincial and parliamentary elections were deemed insecure enough that women candidates from Kandahar campaigned from outside the province,Footnote 50 while 196 of the 200 students reportedly poisoned were female.Footnote 51
(b) On 3 June 2011, the head of the Bamyan provincial council was abducted and his body was found on 7 June 2011.Footnote 52
Intentionally Directing Attacks against the Civilian Population – Article 8(2)(e)(i)
(a) In December 2005, Taliban insurgents demanded that farmers pay tax. Those who could not afford to pay financially were reportedly told to pay in kind, including being beaten, shot, or having their sons abducted.Footnote 53
(b) On 25 October 2006, Taliban spokesperson Qari Yousef Ahmadi stated: ‘There is no difference between the armed people who are fighting against us and civilians who are co-operating with foreigners.’Footnote 54
(c) In May 2011, the Haqqani network claimed responsibility for the deaths of thirty-six construction workers and the wounding of thirteen others when a road construction company was attacked in Paktika province.Footnote 55
(d) In 2016 the Taliban claimed responsibility for 358 civilian deaths, 1,106 civilian causalities, and 260 civilian abductions through 225 incidents.Footnote 56
Intentionally Directing Attacks against Humanitarian Personnel – Article 8(2)(e)(iii)
(a) In June 2011, the Taliban claimed responsibility for a twenty-year-old female suicide bomber attack on an international military convoy in Marawara district, Kunar province.Footnote 57
(b) The Aid Worker Security Database recorded twenty-seven attacks against humanitarian personnel during 2015.Footnote 58 Three of those attacks were attributed to the Taliban while the rest were largely identified as ‘unknown’ or ‘not applicable’.Footnote 59
Intentionally Directing Attacks against Protected Objects – Article 8(2)(e)(iv)
(a) From April to August 2009, 102 schools were attacked leading to the deaths of 105 students and teachers.Footnote 60
(b) In May 2011, the Taliban claimed responsibility for an attack on a military hospital in Kabul which killed six students and wounded twenty-three others.Footnote 61
(c) The UNAMA 2012 mid-year report found seventy-four incidents against schools and education. These incidents included burning of schools, threats to teaching staff, improvised explosive devices (IEDs) near schools and fourteen incidents of occupation of schools.Footnote 62
(d) In 2013, attacks against mullahs and places of worships tripled.Footnote 63
Conscripting or Enlisting Children under the Age of Fifteen or Using Them to Participate in Hostilities – Article 8(2)(e)(vii)
(a) On 12 February 2007, local Afghani children were used as human shields during fighting in Kajaki district, Helmand province.Footnote 64
(b) A 2017 Human Rights Watch report detailed thirteen boys who were recruited to various Taliban units, some when under the age of fifteen, and who were subsequently active in hostilities.Footnote 65 Two of these boys, Qasem, fifteen, and Ahmad, fourteen, were killed after being deployed during a ground incident with Afghan forces.Footnote 66
Killing or Wounding Treacherously a Combatant Adversary – Article 8(2)(e)(ix)
(a) In April 2011, the Taliban used an ambulance to conduct a suicide attack on a police training centre in Kandahar.Footnote 67
(b) On 6 December 2012, a male suicide bomber falsely presented himself as a peace envoy before detonating himself in an attempt to kill the National Directorate for Security (NDS) chief, Asadullah Khalid.Footnote 68
28. Victims have spoken about the impact of experiencing such events:
(i) A man in Zabul province stated: ‘After receiving this warning [about his daughters attending school] I disconnected my phone. Since that time, I have stopped my two daughters from attending school.’Footnote 69
(ii) A victim of a remote-controlled improvised explosive device stated: ‘Since that day, my life has changed for the worse. My leg is injured and is often painful. I can no longer walk easily to attend lessons at university. Sometimes, I hear children crying as I remember that terrible day.’Footnote 70
(iii) Kathreen Wida, the editor of Cheragh Daily explained: ‘Women journalists have been murdered, like Zakia Zaki and Shakiba Sanga Amaaj, so of course I worry that the same thing will happen to me … I worry for my children.’Footnote 71
(iv) The difficulty faced by health officials are evidenced by the following: ‘We were … transferring a pregnant woman in an ambulance. Suddenly, Anti-Government Elements opened fire on the ambulance and wounded the patient in her neck … After two hours, and negotiations by community elders with the Anti-Government Elements, it was clear to them that the ambulance was transporting a pregnant woman and not any Afghan Local Police members. They finally allowed us to transfer the patient to Mehterlam public hospital for treatment.’Footnote 72
(v) The relative of a fifteen-year-old boy, Mati, who was recruited by the Taliban, stated: ‘They cheated him. Mati’s uncle went to bring him back, but the Taliban would not let him go … Then fighting [with Afghan government forces] erupted [in July 2015], and … Mati was killed in an airstrike.’Footnote 73
(vi) Nasima Niazi explained her decision not to contest an election in 2010 due to the security risks: ‘Every day when I leave home to go to parliament, I fear that they might blow me up, so I say goodbye to my daughters, and give them advice, and leave them some money just in case I don’t come back.’Footnote 74
(vii) A community elder described: ‘The local population cannot say anything against the Taliban, or to the benefit of the government since they are always scared of being executed by the Taliban in accusation of spying for the government.’Footnote 75
(viii) A female police officer stated after her close encounter with a suicide attack: ‘My daughter is nine years old and every day before I leave for work she cries and says “Mama don’t go to work. I don’t need to eat”.’Footnote 76
Afghan Forces
29. The Afghan National Defence and Security Forces (ANSF) consists of several organs such as: the Afghan National Army (ANA), the Afghan Air Force (AAF), the NDS, the Afghan National Police (ANP), the Afghan Local Police (ALP), and the Afghan National Border Police (ANBP).
30. The Request alleges the following war crimes under Article 8: torture and cruel treatment (Article 8(2)(c)(i)), outrages upon personal dignity (Article 8(2)(c)(ii)), and sexual violence (Article 8(2)(e)(vi)). These alleged incidents have taken place at various ANSF facilities throughout the territory of Afghanistan.Footnote 77
31. The Chamber notes the inability to provide a ‘bright line’ test to differentiate between the crimes of torture, cruel and degrading treatment, and outrage upon personal dignity. In this way, the Chamber agrees with the reality that ‘experience demonstrates that the conditions that give rise to ill-treatment frequently facilitate torture and therefore the measures required to prevent torture must be applied to prevent ill-treatment’.Footnote 78
32. The Chamber notes that UNAMA has been systematically reporting on the treatment of conflict-related detainees since 2011 and has revealed a continued disregard for the protection and proper treatment of such persons.Footnote 79
33. The use of torture to elicit confessions during interrogations had implicit approval, as was articulated by a provincial chief of the ANP Criminal Investigation Department: ‘All suspects have the right to remain silent. That presents an obstacle to our police work. What can we do if they don’t speak? We have to find out what happened; we need to use certain methods to find out what really happened.’Footnote 80
34. Information gathered has revealed the following acts as being illustrative of those which allegedly occurred:
Torture and Cruel Treatment – Article 8(2)(c)(i)
(a) UNAMA and AIHRC reports detail the following: beatings on the soles of the feet, legs, shoulders, back, and chest with instruments such as cables, pipes, hoses, and/or wooden sticks; punching, hitting, kicking, and/or jumping on a detainee’s body; suspension by the wrists for a period of time; electric shocks; forced prolonged standing; stress positions – such as standing and sitting down repeatedly and standing outside in cold weather conditions for long periods; use of cigarette lighters to burn the soles of detainees’ feet; removal of fingernails and/or toe nails; and the stuffing of cloth or plastic bags in the mouths of detainees in order to cause asphyxiation.Footnote 81
Outrages upon Personal Dignity – Article 8(2)(c)(ii)
(a) UNAMA and AIHRC reports detail the following: forced drinking of excessive amounts of water; denial of food, water, and prayer time; threats of execution and/or sexual assault.Footnote 82
(b) In October 2016, ANA Special Forces reportedly stripped a seventeen-year-old boy naked and photographed him at a school in Paktya province.Footnote 83
Sexual Violence – Article 8(2)(e)(vi)
(a) UNAMA and AIHRC reports detail the following: deliberate injuries to the genitalia of victims by twisting, squeezing, beating, or burning their penises and/or testicles including with pliers or wrench-like devices; administering electric shocks to the testicles; hanging weights from the testicles; and whipping their penises and testicles with cables.Footnote 84
(b) In 2012, ALP members were found to be involved in the process of baad, where a female member of a perpetrator’s family was ‘given’ to a victim’s family as compensation for a crime.Footnote 85
(c) Also in 2012, a commander in the Chahardara district was found to have carried out or ordered torture, sexual assault, and ill treatment, including the sexual assault of a sixteen-year-old boy,Footnote 86 while in Baghlan province, an ALP commander detained five boys for five years who were reportedly sexually abused while performing the roles of bodyguards and ‘dancing boys’.Footnote 87
(d) In 2016, two incidents of sexual violence, including rape and sexual exploitation, against boys by the ALP were reported.Footnote 88
35. Victims have recounted the following in relation to alleged experiences:
(i) ‘He showed me a cable and said, “I will shock you with electricity.” And then he shocked me [displays visible injury]. After that, I did not know where I was or who I was. When I was okay again, I saw that I was back in my cell. But both of my thumbs had ink on them. I did not know it, but they had taken my thumbprints [as proof of a confession].’Footnote 89
(ii) ‘[O]ne of them held my penis in his hand and twisted it severely until I passed out. After I woke up, I had to confess because I could not stand the pain, and I did not want that to happen to me again and suffer the same severe and unbearable pain.’Footnote 90
(iii) ‘I was beaten with a cable for half an hour and they accused me of being a Talib and being involved in a murder case. They beat my body cruelly and told me to confess. During the interrogation they also had two electric wires which they used on my body until I became unconscious. I forcibly confessed that I was involved in the person’s killing. Then I was transferred to the NDS provincial facility, they again slapped me and one of them choked me four times. They wanted me to confess my membership of the Taliban but I denied this. They threatened me to death if I did not confess and so I did.’Footnote 91
(iv) ‘On the third day, NDS officials threatened me that they would insert a wooden stick pasted with chilli powder in my anal canal.’Footnote 92
(v) ‘They tied me on the door of the interrogation office and I was hanged from it for few hours and I was not feeling anything in my hands. The process continued for almost a week.’Footnote 93
US Forces and the CIA
36. The Request states that in pursuit of answers to the 11 September 2001 attack, US forces and the CIA aggressively pursued a detention and interrogation plan of persons suspected of being connected to the planning and execution of the attack.Footnote 94 The existence and approval of this plan is demonstrated through official US reports, documentation, and authorisations as well as independent UN reports.Footnote 95
37. During the course of this detention and interrogation plan, the Request alleges the following war crimes under Article 8 were committed: torture and cruel treatment (Article 8(2)(c)(i)), outrages upon personal dignity (Article 8(2)(c)(ii)), and rape and other forms of sexual violence (Article 8(2)(e)(vi)).
38. The Request states that these crimes occurred in CIA-run detention facilities on the territory of Afghanistan and on the territory of third-party states such as Poland, Romania, and Lithuania predominantly during 2003–2004.Footnote 96
39. The following information is illustrative of the acts alleged to have been conducted by the US forces and the CIA:
Torture and Cruel Treatment – Article 8(2)(c)(i)
(a) Documents reveal the use of: solitary confinement for various amounts of time; sensory deprivation including the use of black-out goggles and sound-blocking earphones; sensory over-stimulation including the use of loud music and flashing lights; stress positions; suspension including from the ceiling; sleep deprivation and/or manipulation; physical assault including grasping, slapping, hitting, or kicking, ‘rough take downs’,Footnote 97 and ‘wallings’;Footnote 98 confinement in small spaces such as boxes; ‘water boarding’,Footnote 99 water dousing or deluging, and/or placing detainees in ice baths.Footnote 100
Outrages upon Personal Dignity – Article 8(2)(c)(ii)
(a) Documents reveal the use of: items of religious importance in an offensive way; sexual humiliation in the form of being exposed to a member of the opposite sex while naked; being photographed naked; diapering; phobias such as dogs to intimidate and threaten detainees; insulting language; food manipulation and/or deprivation; forced nudity including in front of other detainees; being shown pornography; forced grooming; manipulation of the environment including the use of extreme cold or heat; and mock executions.Footnote 101
Rape and Other Forms of Sexual Violence – Article 8(2)(e)(vi)
(a) Documents reveal the use of: physical sexual molestation; sexual assault by a female soldier; beatings focused on the testicles of a detainee; penetration of the anus; rectal feeding;Footnote 102 forced masturbation; and the posing of detainees in sexually degrading positions.Footnote 103
40. The experience and the immediate as well as ongoing impact of such acts were articulated by victims either themselves or through the medium of a care institution:
(i) PHR notes: ‘Short and long-term effects can include memory impairment, reduced capacity to concentrate, somatic complaints such as headache and back pain, hyperarousal, avoidance, irritability, severe depression with vegetative symptoms, nightmares, feelings of shame and humiliation, and posttraumatic stress disorder.’Footnote 104
(ii) Some detainees reported ‘depression, thoughts of suicide and nightmares, memory loss, emotional problems, and are quick to anger and have difficulties maintaining relationships and employment’.Footnote 105
(iii) The Berlin Center for the Treatment of Torture Victims (CVT) found that ‘Muslim victims of sexual torture forever carry a stigma and will often be ostracised by the community’Footnote 106 and that ‘merely being stripped naked implies the breaking of a strict taboo, which leaves victims feeling extremely exposed and humiliated’.Footnote 107
(iv) Said Nabi Siddiqi, an Afghan citizen allegedly detained at several facilities in Afghanistan between July and August 2003, reported that he ‘has had depression, thoughts of suicide and nightmares, is quick to anger, and has suffered from memory loss’.Footnote 108
(v) Haji Abdul Rahman, allegedly detained at several facilities between December 2003 and May 2004, reported that he ‘suffers vision problems and memory lapses, has emotional problems and is quick to anger, “which has caused difficulties with his family and work”’.Footnote 109
(vi) Tarek Dergoul, allegedly detained at facilities in Afghanistan as well as Guantánamo Bay, reported: ‘I get migraines, I’m depressed and I suffer from memory loss. There’s stuff that happened, embedded in my head, that I can’t remember.’Footnote 110
Ratione Temporis
41. Article 11 restricts jurisdiction to crimes committed after the Statute came into force, which occurred on 1 July 2002. Where a state becomes a party after that date, then jurisdiction is held over crimes committed following the accession date. Afghanistan acceded to the Statute on 10 February 2003,Footnote 111 while Poland, Romania, and Lithuania ratified the Statute on 12 November 2001, 11 April 2002, and 12 May 2003 respectively.Footnote 112
42. Therefore, ratione temporis is satisfied …
The Impact on the Lives of the People of Afghanistan
44. Decades of conflict in Afghanistan have left its citizens facing layered and multifaceted impacts. Mass migration to flee the instability has resulted in millions leaving their homes and seeking refuge in neighbouring states, such as the Islamic Republics of Pakistan and Iran.Footnote 113 Those who remain continue to suffer from a deteriorating security situation in many parts of the country and face routine attacks. The governor from a district of the Kandahar province explained:
45.
The life of civilians in this district is extremely difficult. On the one hand, when the Taliban plants IEDs, civilians cannot defuse them for fear of Taliban reactions. If they defuse them, the Taliban will kill them. On the other hand, the government pressures people to tell them where and why the Taliban plants IEDs in their villages … Civilians are stuck in between, and are always in trouble. There is no third source to listen to the people and solve these problems.Footnote 114
46. The conflict has left local infrastructure, systems, and politics in a state of dilapidation. One area where the ramifications will continue to be seen is in the area of education, where generational and cyclical poverty is endemic due to low literacy rates translating into limited employment options. Women in particular face insurmountable challenges in pursuit of education, first from a safety perspective and then from official decrees from the Taliban and Haqqani Network.Footnote 115 Refugee children face similar barriers to educational opportunities, particularly when they are forced to flee to states with little to no welfare support.
47. That children are constantly affected is a concern for this Chamber. This state of despair was articulated by a man who lost one of his nieces to an improvised explosive device in 2011, while another niece and his daughter were also injured: ‘These children were not part of the conflict, they had very hopeful aspirations for their future, but this useless war took their future dreams and lives.’Footnote 116
48. Health and medical services have suffered similarly. Afghanistan is one of only two countries in the world where polio is still endemic. The ‘failure to deliver poliomyelitis vaccinations has serious consequences for children’s health and a direct effect on the efforts to eradicate poliomyelitis in Afghanistan. Cases of polio in Afghanistan tripled in 2011, creating concern of a reversal of several years of decline’.Footnote 117
49. The Chamber wishes to note that civilian deaths and injuries have also resulted from tactics used by pro-government forces.Footnote 118 While not addressed in the list of crimes thus far alleged, these should by no means be less regretted, or be overlooked or forgotten. Furthermore, evidence of rape and sexual assault is presented in the information provided but not brought forward at this stage. Therefore the Chamber calls upon the OTP to investigate such instances for inclusion if evidence dictates.
Conclusion on Jurisdiction
50. In light of the above, the Chamber is satisfied that there is a reasonable basis to believe that the contextual elements of both crimes against humanity and war crimes are satisfied in respect of the alleged events, in particular in light of their scale and magnitude. Suffice to say, at this stage, that according to UNAMA, civilian casualties in the period 2009–2016, as witnessed throughout the Afghan territory, exceed 50,000, of which 17,700 are deaths and over 33,000 injuries.Footnote 119
Judge Mashal Aamir and Judge Adrienne Ringin
16.3 The Gravity Test in the Afghanistan Investigation
In 2019, Pre-Trial Chamber II decided whether to authorise an investigation into crimes allegedly committed on the territory of the Islamic Republic of Afghanistan since 1 March 2003.Footnote 120 While the Chamber ultimately decided that an investigation would not be in the interests of justice, the Chamber did conclude that the crimes allegedly committed by the Afghani army, the Taliban, and American Central Intelligence Agency (CIA) forces against Afghani detainees were severe enough to merit passing the ICC’s gravity test.
In this rewritten decision, Judge Marshall concurs with the original Chamber’s finding through a critical engagement with the role of gender, and in particular sexual violence, prevalent in the crimes allegedly committed. In doing so, Marshall expands the section on gravity, allowing for an exploration of the intersectionality of race, ethnicity, and other social factors, placing the survivors at the centre of the discussion and analysing the actions of all protagonists in the conflict.
Decision pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan No.: ICC-02/17
Date: 12 April 2019
Original: English
PRE-TRIAL CHAMBER II(B)
Before: Judge Jill MARSHALL
SITUATION IN THE ISLAMIC REPUBLIC OF AFGHANISTAN
Introduction
1. This Chamber notes the importance of victims’ representations complementing and supplementing the information provided by the Prosecutor on the facts alleged in support of the Request. A high number of victims of the situation have come forward to present their views on whether the Chamber should authorise the commencement of this Prosecutor’s investigation. The Court has received a large number of representations in various languages: 668 representations on behalf of 6,220 individuals; 17 representations on behalf of 1,690 families; 13 representations on behalf of several millions of victims, including 26 villages; and 1 representation on behalf of an institution. It is fundamental to hear the voices of women and girls, as well as other alleged victims and survivors of the acts falling under investigation. A survivor-centred approach is in keeping with norms and resolutions of other parts of international law, and international criminal law will be enriched by considering these issues holistically within the wide international legal framework.Footnote 121
2. In terms of court procedure, Article 15 of the Rome Statute states that the Prosecutor may initiate an investigation on their own motion. Such investigation must be authorised by a pre-trial chamber with the assessment being provisional in nature because it is conducted in abstract pending commencement of investigations. To reinterpret and transform laws for a better, more just future as a court, we need to use those tools currently at our disposal as a starting point.Footnote 122
Admissibility …
Gravity
19. The next decision relates to gravity. Any crime falling within the jurisdiction of this Court is serious. However, Article 17(l)(d) states that a case may be inadmissible if it ‘is not of sufficient gravity to justify further action by the Court’. The prosecution makes detailed submissions arguing that all the crimes alleged in the Request meet the threshold of sufficient gravity. Assessing gravity is crucial, requiring information regarding those most responsible for the most serious crimes within the situation. Any assessment must be carried out consistently, irrespective of the states or parties involved, or the person(s) or group(s) concerned.Footnote 123
20. The Rome Statute does not define gravity. It generally refers to the seriousness of the crimes but lacks a clear definition. The Appeals Chamber has dismissed the setting of an overly restrictive legal bar to the interpretation of gravity that would hamper the deterrent role of the Court. It has also observed that the role of persons or groups may vary considerably depending on the circumstances of the case and therefore should not be exclusively assessed or predetermined on excessively formulistic grounds.Footnote 124
21. The Court has read the detailed submissions from the prosecution and refers to selected relevant information within its assessment below.
Assessment
22. The assessment of gravity must be done from both a quantitative and a qualitative viewpoint. The factors that guide the prosecution’s assessment include the scale, nature, manner of commission of the crimes, and their impact.Footnote 125 These factors are helpful in reaching this decision and will be used together with the Request’s classification of three groups allegedly responsible for the crimes, namely: the Taliban and affiliated forces; the Afghan National Security Forces and others (ANSF); and US forces and the CIA. The persons or groups of persons identified in accordance with Regulation 49(2)(c) include persons with levels of responsibility in directing, ordering, facilitating, or otherwise contributing to the commission of alleged crimes. The persons or groups of persons so identified include those who devised, authorised, or bore oversight responsibility for the implementation of the incidents, including persons with levels of responsibility for interrogating detainees within a given facility or region, and developing, authorising, directing, supervising, and implementing the commission of alleged crimes.
What Is the Scale, Nature, and Manner of Commission of the Crimes and Their Impact?
Scale
23. What is ‘scale’ and how is it assessed? In line with past practice of this Court, factors to consider include:
(i) the number of direct and indirect victims;
(ii) the extent of the damage caused by the crimes, in particular the bodily or psychological harm caused to the victims and their families;
(iii) or their geographical or temporal spread (high intensity of the crimes over a brief period or low intensity of crimes over an extended period).Footnote 126
24. The prosecution provides extensive information regarding the background to the series of armed conflicts and instability within Afghanistan for decades. It recalls that since 1 May 2003 – when the Rome Statute entered into force for Afghanistan – conflict intensified, as an armed insurgency waged a widespread guerrilla-style war against the government, as well as international forces supporting it. The prosecution submits that, according to statistical data collected since 2009, many thousands of civilians, including many women, have been victims of continuous acts of serious violence, potentially constituting crimes within the jurisdiction of the Court.Footnote 127
Nature
25. The nature of the crimes refers to the specific elements of each offence such as:
(i) killings;
(ii) rapes and other crimes involving sexual or gender violence;
(iii) crimes committed against children;
(iv) persecution, or the imposition of conditions of life on a group calculated to bring about its destruction.Footnote 128
Manner
26. The manner of commission of the crimes may be assessed by considering:
(i) the means employed to execute the crime;
(ii) the degree of participation and intent of the perpetrator (if discernible at this stage);
(iii) the extent to which the crimes were systematic or result from a plan or organised policy or otherwise resulted from the abuse of power or official capacity;
(iv) elements of particular cruelty, including the vulnerability of the victims;
(v) any motives involving discrimination, or the use of rape and sexual violence as a means of destroying groups.
Impact
27. The impact of crimes may be assessed through looking at:
(i) the suffering endured by the victims and their increased vulnerability;
(ii) the terror subsequently instilled;
(iii) or the social, economic, and environmental damage inflicted on the affected communities.
Allegations against the Taliban and Affiliated Groups
Scale
28. Since mid-2003, remnants of the Taliban, formerly in power, and other armed anti-government groups, clashed with Afghan forces and those international forces supporting it. The civilian population suffered greatly as the anti-government groups attacked civilians including those perceived or believed to be associated with the Afghan government or related to the international community.
29. Annex 2A to the Request provides a non-exhaustive list and detailed description of several of the most serious incidents, which are said to have taken place in as many as twenty-five provinces of Afghanistan. An extensive catalogue of crimes, including statistics, were alleged to have been committed by them as part of a widespread and systematic attack; these include many and varied incidents on an extensive scale, as further described below in relation to the nature of the acts.
30. Over the period 2009–2016, the prosecution states that 50,802 civilian casualties (17,770 deaths and 33,032 injuries) were attributed to anti-government armed groups, mostly from their use of improvised explosive devices (IEDs) as well as suicide and complex attacks. The information available suggests that much of the alleged conduct was committed with particular cruelty or in order to instil terror and fear among the local civilian population.Footnote 129 The prosecution mainly relies on the findings of the United Nations Assistance Mission in Afghanistan (UNAMA) and the Afghan Independent Human Rights Commission (AIHRC). For example, UNAMA documented 11,002 civilian casualties (3,545 deaths and 7,457 injured) in 2015 alone, exceeding the previous record levels of civilian casualties that occurred in 2014. These figures show an overall increase of 4 per cent during 2015 in total civilian casualties from the previous year. UNAMA began its systematic documentation of civilian casualties in 2009. Ground engagements between parties to the conflict caused the highest number of total civilian casualties (fatalities and injuries), followed by IEDs and suicide and complex attacks. Ground engagements caused the most fatalities amongst civilians, followed by targeted and deliberate killings.
31. The prosecution alleges that the Taliban and other anti-government groups can be held responsible for these incidents. While making some submissions on the structure of the Taliban and other anti-government armed groups in Afghanistan, the prosecution underlines that information available at this stage does not lead to any conclusive determination as to which specific groups, or association of groups, may have carried out the alleged crimes.
Nature
32. The Request’s list of Taliban acts consists of a variety of incidents including, without limitation, the following: attacks by gunmen, bombers, and suicide bombers resulting in numerous murders and injuries of civilians gathered in public and private places – among them mosques, hospitals, and schools – as well as foreigners regarded as supportive of the Afghan government; executions of alleged collaborators and spies of the government and foreign entities, sometimes followed by the gruesome display of mutilated bodies to which written messages threatening the population were attached; abductions of civilians; attacks against civil servants, police officers, judges and other officials of judicial authorities, governors, members of parliament and of district and provincial councils, religious, tribal, and other local community leaders, teachers, healthcare providers, journalists, farmers, and workers on de-mining or road construction sites; schoolgirls and female officials. Other incidents involving the multiple commission of prohibited acts and furthering an organisational policy leading to a high number of direct and indirect victims, including widespread attacks on humanitarian aid workers.
33. The prosecution alleges that the Taliban and other anti-government groups can be held responsible for attacks on United Nations, NGO, and humanitarian workers; suicide attacks resulting in the killing or wounding of members of Afghan forces and of soldiers of the International Security Assistance Force (ISAF) established by the UN Security Council; and the use of child soldiers, in some cases in connection with suicide bombings.Footnote 130
Manner
34. This orchestrated, systematic, cultural structure of violence based on ideologies of hate, inequality, and terror appeared to permeate the country, contributing to intentional cruelty, including rape and sexual violence, potentially as a means to destroy certain groups.
35. This structural order could instil a notion of recurring harms simply expected in women’s lives, with access to resources virtually impossible and violence against women and girls a reflection of wider unequal power relationships between men and women in society.Footnote 131 Thought-provoking research on suffering indicates there is a body of work that gives voice to the physical and emotional pain of people battling with chronic poverty, social marginalisation, and routinised violence. It focuses on disruption and regulation: how ordinary social life ‘hurts’ and how this hurt becomes part of the social experience.Footnote 132 In this regard, there is much evidence of Taliban attacks or threats towards the education sector undermining the rights of girls and women to education without discrimination under international law. Attacks occurred not only in schools, but in places of worship and against civilians, all contrary to international law. These alleged crimes were committed in a manner inflicting maximum harm and injury on the largest number of victims, through suicide bombings in crowded public gatherings, including against humanitarian workers. The information available suggests that much of the alleged conduct was committed with particular cruelty, or intended to instil terror and fear among the local civilian population. Victims were deliberately targeted on a discriminatory basis based on their actual or perceived political allegiance or on gender grounds, with attacks particularly directed to civic and community leaders. For example, in 2015, UNAMA documented a 37 per cent increase in female casualties and a 14 per cent increase in child casualties.
36. UNAMA indicates that women continue to suffer greatly from the armed conflict. In 2018, women comprised 10 per cent of conflict-related civilian casualties, and 12 per cent in 2017. UNAMA documented 1,152 women casualties from the armed conflict (350 deaths and 802 injured), a 6 per cent decrease from 2017. Together with the direct impact on women, they are also disproportionately affected by the broader effects of the armed conflict. This exacerbates their vulnerability to marginalisation, poverty, discrimination, and violence. Further, internally displaced women and children face particular risks of abuse of their basic rights, in particular access to adequate shelter, food, and health services. Women suffer harm from the loss of male family members, critical to the socio-economic survival and security of the nuclear and extended family unit. Women’s access to health services is severely impeded in locations of active hostilities as service providers either flee the fighting or cannot provide services due to ongoing insecurity. UNAMA noted that incidents of armed attacks, ground fighting, and IED detonations contributed to a heightened sense of fear amongst women for their physical safety and that of their family. Women thus remained within their homes and villages with their families, restricting their freedoms on a day-to-day basis, eliminating women’s visibility from public life and their right to make contributions without fear of repercussions on them directly or on their families. The National Action Plan on UN Security Council Resolution 1325 on Women, Peace and Security to protect women and girls from violence – in law, policy, and practice – needs to be taken into account in this regard to ensure underlying structural discrimination policies are eliminated at source, in the design of governmental policies, and provide full redress for failures to do so.
37. The public nature of ‘executions’, and displaying mutilated bodies, has been noted in the context of genocide as destroying communities and having cultural significance.Footnote 133 This example is from Rwanda and awareness of cultural understandings of suffering and death are often specific. In the context of Rwanda, and in certain religious understandings, ‘suffering a bad death’,Footnote 134 including the separation of the head from the rest of the body, can have further spiritual resonance. It is clear this constitutes significant cruelty, including towards vulnerable victims.
38. The Request submits that such conduct qualifies as crimes against humanity under Article 7 of the Statute and, specifically, as the crimes of murder, imprisonment, or other severe deprivation of physical liberty and persecution on political and gender grounds, committed since 1 May 2003 as part of a widespread and systematic attack against civilians. The Request further submits that these acts qualify as war crimes in the context of an armed conflict not of an international character under Article 8 of the Statute and, specifically, as the crimes of murder; intentionally directing attacks against the civilian population, humanitarian personnel, and protected objects; conscripting or enlisting children under the age of fifteen or using them to participate actively in hostilities; and killing or wounding treacherously a combatant adversary.
Impact
39. The Chamber specifically highlights the devastating and unfinished systemic consequences on the lives of innocent people of the brutal violence inflicted over a prolonged period; the gruesome public display of violence aimed at instilling fear and inspiring subjugation in the population as well as the recurrent targeting of women, including very young and vulnerable civilians. The widespread use of such tactics placed the civilian population at increased risk of attack from governmental and international forces, contributing to increased civilian casualties.Footnote 135
40. The daily endurance and duration of these crimes has had a severe social and psychological impact on the population. The campaign of targeted killings of politicians, government workers, tribal and community leaders, teachers, and religious scholars has deprived local communities of functioning institutions. In many parts of the country, the population has been denied access to humanitarian assistance and basic government services, including healthcare, because of the insurgent strategy of targeting government and aid workers, including medical staff and de-miners. Areas have become effectively out of bounds to humanitarian assistance workers, while continued attacks against foreigners have forced many international aid organisations to cease their operations, making the effective delivery of essential aid or development programmes more difficult.
41. The alleged crimes have had a particularly broad and severe impact on women and girls. Not only have they suffered conflict-related sexual violence; girls’ education has come under sustained attack, thereby depriving thousands of girls of their fundamental human right to education.Footnote 136 UNAMA evidence shows that the armed conflict took a heavy toll on education in 2018. Between 1 January and 31 December, UNAMA recorded 191 incidents affecting education, including attacks targeting or incidentally damaging schools; the killing, injury, and abduction of educational personnel; and threats against education facilities and personnel. Women who were left as sole income-providers for their households after the death or injury of their husbands have experienced long-lasting social and economic consequences, with poverty forcing many women to give their daughters in marriage in exchange for debts or to take their children out of school, often to work, with potentially long-lasting negative impact on the lives of women and girls and wider society.Footnote 137
42. Such allegations are of an extremely grave nature. If proven, they demonstrate the structural nature of violence against a population, particularly discriminatory, abusive, and violent towards women and girls, and indicate that an investigation into gender-based crimes is required.
Allegations against the ANSF and Other Forces
Scale
43. Alleged crimes are said to have been committed institutionally in certain facilities on a large scale with high percentages of detainees reportedly subjected to torture or cruel treatment. For example, UNAMA evidence that in 2016 alone, ANSF caused 1,663 civilian casualties (457 deaths and 1,206 injured) during ground engagements, a 41 per cent increase compared to 2015. This figure does not include 103 civilian casualties (18 deaths and 85 injured) attributed to pro-government armed groups or 7 civilian deaths attributed to international military forces. In 2015, UNAMA attributed 1,177 civilian casualties (321 deaths and 856 injured) from ground engagements to ANSF (not including 81 civilian casualties – 19 deaths and 62 injured attributed to pro-government armed groups).
Nature
44. With regard to the ANSF and other forces, and the US forces and CIA, the alleged crimes include killings, torture, and crimes of a sexual nature, as detailed below.
Manner
45. The prosecution submits that, since 1 May 2003, members of the ANSF and others committed crimes against persons removed from combat by detention, or civilians who were not taking active part in the hostilities and were detained for security reasons related to the ongoing armed conflict. Evidence was produced that torture was widely practised to force confessions, obtain information, or punish. The Request details cases of infliction of severe physical and mental pain or suffering to detainees, some of which are particularly brutal, cruel, and hurtful and some resulting in the victim’s death; cases of humiliating and degrading treatment, or other inhumane treatment violating victims’ dignity, including by depriving them of fundamental material and spiritual needs, such as sleep, food, and water, and praying; as well as cases of acts of sexual violence, at times resulting in the permanent impairment of the victims’ sexual integrity. In 2016, UNAMA verified eleven cases of conflict-related sexual violence against women, girls, and boys committed by parties to the conflict including the Afghan National Border Police and the Afghan Local Police (as well as the Taliban). Of these cases, just two perpetrators (members of the Afghan National Border Police) were convicted and sentenced to imprisonment. The eleven incidents include four documented cases of ‘bachah bazi’, involving the sexual abuse and enslavement of boys by men in positions of power, many of whom are linked to the Afghan National Defence and Security Forces. Efforts led by the AIHRC to criminalise this practice resulted in draft legislation in March 2016.Footnote 138 A report by an independent government watchdog listed 5,753 cases of what it describes as gross human rights abuses by Afghan forces. Many of those abuses involve routine enslavement and sexual abuse of underage boys by Afghan commanders.Footnote 139 The limited presence of women in the Afghan National Police (1.8 per cent) contributes to the continuing underreporting of sexual violence. The prosecution submits that there are reasonable grounds to believe that, since 1 May 2003, the war crimes of torture and cruel treatment, outrages upon personal dignity, and sexual violence have been committed in the context of a non-international armed conflict against persons so detained.
46. The ‘special gravity’ of torture is noted. Senior officials have admitted that detainees were subjected to cruel treatment in the relevant facilities under their authority.Footnote 140 Torture’s prohibition represents a peremptory norm of international law (jus cogens).Footnote 141 It ‘is absolute and non-derogable in any circumstances’, ‘applies at all times’, ‘no exceptional circumstances whatsoever may be invoked by a State Party to justify acts of torture in any territory under its jurisdiction’, with no exceptions including ‘a state of war or threat thereof, internal political instability or any other public emergency’, or ‘any threat of terrorist acts or violent crime as well as armed conflict, international or non-international’. This prohibition is ‘grounded in a widespread international practice and on the opinio juris of States … appears in numerous international instruments of universal application … has been introduced into the domestic law of almost all States’.Footnote 142 It is therefore clear that where torture is allegedly involved, the matter of gravity is made out.
Impact
47. Detainees were forced to give false confessions, with threat of further punishment, resulting in potentially innocent detainees incarcerated for longer periods with further deprivation of their, and their families’, rights.Footnote 143
48. The alleged crimes had severe short-term and long-term impacts on detainees’ physical and mental health, including permanent physical injuries. Often the pain during interrogation caused lost consciousness. Some detainees are described as ‘broken husks’ after abuse, suffering insomnia, chronic pain, and forgetfulness.Footnote 144
49. Families of victims were often left in a state of uncertainty about the fate of loved ones; their communities came under suspicion of harbouring loyalties to the Taliban, or Al Qaeda, or were tainted by such accusations. The information available suggests that victims were deeply traumatised by their treatment in custody.
Allegations against US Forces and the CIA
Scale
50. The alleged crimes appear to have been inflicted on a small percentage of all persons detained by US armed forces over a limited time period, after which the use of such techniques by US armed forces worldwide was formally rescinded and the US Army Field Manual restored the Geneva Conventions in its detainee treatment and interrogation. The acts allegedly committed were serious both in their number and in their effect and, although implemented pursuant to authorised interrogation policies adopted locally rather than at headquarters level, they implicated personal responsibility within the command structure.
Nature
51. With regard to US armed forces and the CIA, the alleged crimes include killings, torture, and crimes of a sexual nature.
Manner
52. The prosecution argue that the treatment of CIA detainees appears to have been particularly grave on a qualitative assessment. The alleged crimes appear to have been committed with particular cruelty, involving the infliction of serious physical and psychological injury, over prolonged periods, and including acts committed in a manner calculated to offend cultural and religious values, and leaving victims deeply traumatised. Detainees who were subjected to ‘enhanced interrogation techniques’ and extended isolation exhibited psychological and behavioural issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation. A specific section of the Request is devoted to the alleged policies of US armed forces and the CIA for interrogating detainees. The specific incidents included inflicting severe physical and mental pain or suffering to hors de combat detainees or to other persons not taking active part in the hostilities in the non-international armed conflict, some of which are extremely cruel, brutal, and gruesome; cases of humiliating, degrading, or inhumane treatment violating the victims’ dignity, among which the deprivation of fundamental material and spiritual needs (including sleep, food and water, and praying); acts implying offence, distress, and shame, including acts of a sexual nature, invading intimate, private dignity, bodily, and psychological integrity, all fully protected under international law. Socio-cultural norms and religious factors particular to Afghan society, known for its social conservativism especially regarding sexual matters,Footnote 145 may have caused incidents of detainee abuse to be under-reported, especially in cases of sexual violence such as forced nudity and sexual humiliation. These victims may experience shame, guilt, and fear of being stigmatised by their communities. The prosecution received information that victims are afraid to report the abuse because of threats to harm their families or fear of retaliation and reprisals. Some who did speak publicly were threatened, harassed, or attacked after doing so. There has been no reporting mechanism in place attempting to collect accounts from witnesses and survivors located in remote and insecure areas of Afghanistan or that has been available to victims who have been willing to come forward with their testimonies.Footnote 146
53. According to the prosecution, there is a reasonable basis to believe that, since May 2003, members of the US armed forces and the CIA have committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence pursuant to a policy approved by the US authorities.Footnote 147
54. The prosecution further indicates there may be other crimes committed by members of the other international forces deployed in Afghanistan.Footnote 148 A determination on these has not yet been reached due to currently insufficient information or analysis. Several victims’ representations refer to incidents in which individuals not participating in hostilities as well as non-military buildings, including of a protected nature, were indiscriminately or deliberately attacked by air strikes and drones by US and other international forces, despite lacking a military target, and that such attacks resulted in civilian deaths. Although the prosecution is not requesting authorisation to investigate these yet, it notes that these allegations ‘can be subjected to proper investigation and analysis if an investigation of the Situation is authorised’. Further, it states ‘should an investigation be opened, these and other alleged crimes that may occur after the commencement of the investigation … could be assessed within the scope of the authorised situation’.Footnote 149
55. These alleged crimes appear to have been committed with particular cruelty, involving the infliction of serious physical and psychological injury, over prolonged periods, including acts committed in a manner calculated to offend cultural and religious taboos, leaving victims deeply traumatised. Detainees so subjected exhibited psychological and behavioural issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation.Footnote 150
56. The treatment of CIA detainees appears to have been particularly grave on a qualitative assessment, with interrogations being ‘brutal and far worse than the CIA represented to policymakers and others’. The CIA applied its ‘enhanced interrogation’ techniques ‘with significant repetition for days or weeks at a time’, with techniques ‘used in combination, frequently concurrent with sleep deprivation’.Footnote 151 Further details can be found in the US Senate Report regarding the horrors of ‘waterboarding’ and the particularly harsh conditions of confinement for CIA detainees allegedly forming an integral part of the interrogation process. Information available is, however, limited by the clandestine nature of the detention and interrogation programme; efforts to conceal the number and identity of victims; denying access to national and international reporting mechanisms mandated to monitor and report these detentions, together with the destruction of CIA videotapes of this behaviour.Footnote 152
Impact
57. The prosecution point out the psychological impact on CIA detainees who were told they would not leave custody alive.Footnote 153 Threats to harm children or sexually abuse mothers of detainees are detailed. Psychological and behavioural issues were identified, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation. It is noted that ‘[m]ultiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems’.Footnote 154 Being carried out by a democratic country seen by many to be the ‘land of the free’ and ‘leaders of the free world’ with developed standards of integrity, accountability, and transparency, such behaviour is especially hypocritical. This has corresponding effects on any understanding of trust in liberal democracies. Further, women are involved as alleged perpetrators of torture and other crimes. All these issues can undermine support for substantive gender equality, instead being used to substantiate arguments supporting the negative influence of westernising feminism on Afghan society, in general, and Afghan women, in particular.
58. Previous international criminal case law has secured convictions for sexual violence and raised the profile of the global phenomenon of conflict-related sexual violence and the cultural, religious, and societal consequences of such crimes that must be considered in any assessment of gravity. As noted by Brammertz and Jarvis, former lead prosecutors at the International Criminal Tribunal for the former Yugoslavia (ICTY), ‘we must engage in an honest dialogue about why conflict-related sexual violence presents such an accountability challenge and how we can improve the situation. We cannot simply rest on the successes we managed to secure in the past – we must continue to insist on more effective strategies for the future’.Footnote 155 As part of that, this Court needs to acknowledge the structural gender disadvantages suffered by women in Afghan society during the time in question in this decision.
Conclusions on Gravity
59. All these allegations meet the gravity threshold set out in Article 17(1)(d) in respect of all the ‘categories’ of crimes for which the prosecution requests authorisation to investigate committed by the Taliban, members of the ANSF and others, US armed forces and members of the CIA. There appear to be multiple failures from all sides.
60. In relation to the crimes allegedly committed by the ANSF, US forces and the CIA, the Chamber notes the gravity per se of the crime of torture, which is banned by international law, and that the conduct was allegedly committed by public officials in their functions, the high number of victims, the nature of the crimes, the manner of the conduct and its impact on the victims.
61. As my decision draws to a close, I would like to refer to the risks and tensions of feminist perspectives in legal decisions and judgments such as this. Feminism in law depends on paradoxes – to acknowledge the power of discourses, such as international criminal law, that reinforce the existing status quo yet require the transforming potential for resistance. In this regard, we need to challenge the notion of violent acts that can be prosecuted and addressed whilst also accounting for their enabling structures and ideologies, to expand and pluralise our vocabularies of justice and redress, but to do this without reinscribing narratives that reinforce patriarchal norms.Footnote 156 This is ‘not so much a space of resistance but an entirely different geometry through which we can think power, knowledge, space and identity in critical and, hopefully, liberatory ways’.Footnote 157 It is hoped that this short decision contributes fruitfully to such a future of transformative international criminal justice.
Judge Jill Marshall
16.4 The Complementarity Test in the Afghanistan Investigation
In 2019, Pre-Trial Chamber II concluded that the complementarity test had not been met by belligerent parties in prosecuting alleged crimes committed in the Islamic Republic of Afghanistan from 1 March 2003. Therefore, the potential cases arising from the Afghanistan situation appeared admissible to the ICC.Footnote 158
In this rewritten decision, Kathryn Gooding confirms this finding. In doing so, Gooding applies a feminist lens to several aspects of complementarity including the ‘substantially the same conduct’ test as well as the framing of ‘unwilling’, ‘unable’, and ‘genuine’, noting how domestic cases against the Taliban forces, Afghan National Security Forces, US armed forces, and the Central Intelligence Agency (CIA) failed to be conducted in a gender-sensitive manner. This is demonstrated through the absence of language around sexual violence in Afghan law, and the discriminatory requirements for proof in the matter of rape. Gooding also engages with the prosecution for Afghan National Security Forces, US armed forces, and the CIA in the treatment of male sexual assault survivors and how social and cultural understanding of male sexual assault acts as a barrier to effective prosecution.
Decision pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan No.: ICC-02/17
Date: 12 April 2019
Original: English
PRE-TRIAL CHAMBER II(B)
Before: Judge Kathryn GOODING
SITUATION IN THE ISLAMIC REPUBLIC OF AFGHANISTAN
Determination by the Chamber on the Issues on Admissibility
[…]
Introduction
70. As per Article 53(1)(b), the Chamber is required at this stage to assess whether prospective cases, which could arise out of an investigation by the Prosecutor, would be admissible before the Court pursuant to Article 17 of the Statute. This assessment is conducted by reference to the conduct identified by the Prosecutor in her Request,Footnote 159 which could constitute crimes within the jurisdiction of the Court. This is, however, without prejudice to further cases that may subsequently be identified by the Prosecutor. The admissibility assessment contained within Article 17 is three-fold; Article 17(1)(a)–(d) sets out the two-stage complementarity assessmentFootnote 160 and gravity assessment that the Chamber must carry out. Firstly, the Chamber must consider whether there are, or have been, any domestic investigations or prosecutions of cases that could arise from any authorised investigation into the situation in Afghanistan. And if this is answered in the affirmative, whether these cases relate to the same case that may be the subject of proceedings before the Court, and whether a decision has been made not to prosecute the individuals concerned.
71. Secondly, the Chamber must assess whether the state with jurisdiction is genuinely willing and able to carry out the relevant investigations or prosecutions identified at stage 1 and whether a decision not to prosecute any individual concerned arose out of any unwillingness or inability of the state to genuinely prosecute.
72. The Chamber must finally consider whether the relevant cases identified are of sufficient gravity to justify investigation by the Court.
Complementarity
73. The Pre-Trial Chamber has provided guidance as to the requirements contained within Article 17(1)(a). The Court is required to conduct a judicial assessment of whether the case that the state is investigating sufficiently mirrors the one that the Prosecutor is investigating.Footnote 161 The focus must be on the nature of the conduct, not its legal characterisation in the national legal system.Footnote 162 The Pre-Trial Chamber has found that the unwillingness and inability tests are disjunctive;Footnote 163 therefore, if either one is satisfied, the case is admissible before the Court. Article 17(2) and (3) sets out a number of factors which may indicate unwillingness or inability on the part of the investigating and/or prosecuting state, including national proceedings not being conducted independently or impartially. Inability must be assessed in the context of the relevant national system and proceduresFootnote 164 to determine whether the national authorities are capable of investigating or prosecuting the accused.
74. The Trial Chamber has found that the statutory definition of ‘unwillingness’ contained within Article 17(2) is not exhaustive.Footnote 165 The Chamber therefore considers that the definition can be extended to encompass gender-sensitive considerations to assess the extent to which Afghanistan and the United States can be considered willing or able to investigate or prosecute the cases contained within the Prosecutor’s Request.
75. In relation to national proceedings carried out in Afghanistan against members of the Taliban and affiliated armed groups, the Prosecutor submits that members of such groups have been accused predominantly of committing crimes against the state.Footnote 166 Articles 173–253 of Afghanistan’s 1976 Penal Code set out crimes against the external and internal security of the state. These offences encompass efforts to change the constitution or form of the state by force, or to impair the independence or territorial integrity of Afghanistan. The Chamber considers that these offences do not cover substantially the same conduct as the conduct alleged by the Prosecutor to constitute the crime of persecution on political and gender grounds contrary to Article 7(1)(h). The Chamber notes that the national proceedings, focusing on conduct considered to weaken the state, emanate from the ideologically competing, yet similarly patriarchal, visions of statehood of the Western-backed government and the Taliban.
76. In contrast, the crime of persecution on gender grounds, as identified by the ICC Prosecutor, reflects in this case the individual harms suffered by women and girls, targeted simply for being women. The national proceedings in no way capture the extent of the harm, or the discriminatory rationale, nature, and effect of the offences committed against Afghan women and girls. The Chamber is therefore satisfied that potential cases against members of the Taliban and affiliated armed groups would be admissible under Article 17 because the first limb of the test is not satisfied (that is, the Afghan authorities are not investigating or prosecuting the same conduct that is of interest to the ICC).
77. In addition, even if there was a greater degree of overlap between the national and ICC proceedings, these cases would still be admissible to the ICC under the second limb of the test. That is, the Chamber considers that Afghanistan is unwilling to investigate or prosecute the potential cases arising from the Request, as a result of the inadequacies of the Afghan legal system in its treatment of sexual and gender-based violence. Although equality between men and women is enshrined in Article 22 of the Afghan Constitution, it is the observation of the Chamber that this is not the case in practice. The Afghan legal system is defined by legal pluralism, with Islamic Hanafi jurisprudence dictating the punishments for hudud (crimes committed against the public interest) and qisas (crimes against the bodily integrity of a person).Footnote 167 The hudud offence of zina, contrary to Article 429 of the 1976 Penal Code, prohibits adultery, fornication, and rape, although rape is neither mentioned nor defined. This ambiguity has reinforced the blurring between consensual and non-consensual sexual relations and has led to the widespread incarceration of female rape victims on charges of adultery.Footnote 168 Furthermore, discriminatory procedural requirements obstruct investigations into and convictions for rape. In support of her complaint, a female complainant must obtain the testimony of four trustworthy male Muslims, each of whom were present at the time of the offence, and each of whom saw the actual act of penetration.Footnote 169
78. The Chamber notes that of relevance is paragraph 41 of the Prosecutor’s Policy Paper on Sexual and Gender-Based Crimes, which states that the absence of genuine national proceedings being undertaken can be demonstrated by discriminatory attitudes and gender stereotypes evident in the substantive law of the country under investigation, and procedural rules that limit access to justice for victims of sexual and gender-based crimes.Footnote 170 The Chamber is therefore satisfied at this stage that potential cases arising from crimes committed by members of the Taliban would be admissible under the second limb of the test, as a result of the unwillingness of the Afghan authorities to genuinely investigate or prosecute conduct constituting the crime of prosecution on political and gender grounds contrary to Article 7(1)(h) of the Statute.
79. With regard to the alleged crimes committed by Afghan National Security Forces, US armed forces, and the CIA, the Prosecutor’s Request details a number of acts constituting sexual violence contrary to Article 8(2)(e)(vi), carried out against predominantly male conflict-related detainees. The acts alleged in the Request include deliberate injuries and electric shocks to the genitals, penetration of the anal openings of detainees in circumstances of sexual humiliation, forced nudity, and sexual molestation. The Chamber notes that the Prosecutor’s Request refers to a number of investigations conducted by Afghan authorities for torture and cruel treatment, and by US authorities for assault and murder. This characterisation of the acts detailed in the Request by the relevant authorities fails to reflect the sexual and gender dimensions of the crimes – specifically that the crimes were likely carried out for the purposes of punishment, humiliation, and degradation of the detainee against the backdrop of cultural and religious taboos against homosexuality prevalent in Afghanistan.Footnote 171
80. It is the opinion of the Chamber that the sexual and gender dimensions of these alleged acts go to the very nature of the conduct, such that the investigations by Afghan and US authorities into acts of torture, cruel treatment, assault, and murder do not sufficiently mirror the cases detailed by the Prosecutor in her Request. The Chamber further notes the importance of correctly characterising sexual and gender-based violence, to undermine the dichotomy of female/victim and male/perpetrator, and the idea that a male survivor is emasculated and weak, due to sexual violence casting aspersions of homosexuality. The Chamber concludes that the Afghan and US authorities are not investigating or prosecuting cases constituting the same conduct as that contained within the Prosecutor’s Request, and therefore such cases are admissible under Article 17.
81. The Chamber observes that the first limb of the test for complementarity has been met in relation to investigations and prosecutions conducted by Afghan and US authorities; however, these cases would nevertheless be admissible under the second limb. The Chamber notes with concern the significant lack of protections for male survivors of sexual violence in Afghanistan. Sodomy and sexual acts between men that do not result in penetration, tafkhez, are offences contrary to Articles 646, 647, and 649 of the 2017 Penal Code.Footnote 172 It has been reported that men and boys who report rape and other sexual violence to the relevant authorities are branded as homosexual and are incarcerated for these offences.Footnote 173 It is the conclusion of the Chamber that the structural discrimination evident in the Afghan legal system precludes any impartial proceedings and demonstrates Afghanistan’s unwillingness to conduct genuine proceedings that reflect the sexual and gender dimensions of the crimes contained within the Request.
82. Furthermore, the Chamber also notes its concern regarding the approach of the US authorities in conducting predominantly non-judicial and administrative proceedingsFootnote 174 in relation to offences perpetrated by members of the US armed forces and the CIA, which demonstrates the unwillingness of the US authorities to genuinely carry out prosecutions of individuals for cases contained within the Prosecutor’s Request. The Chamber notes with interest paragraph 41 of the Prosecutor’s Policy Paper on Sexual and Gender-Based Crimes, which states that the absence of genuine national proceedings can be indicated by the lack of political will, including official attitudes of trivialisation and minimisation or denial of the crimes contained within the Prosecutor’s Request, and manifestly insufficient steps in the investigation and prosecution of sexual and gender-based crimes.Footnote 175
83. The Church Report found that as of September 2004, twenty-seven investigations had been initiated following allegations of detainee abuse by US personnel in Afghanistan, involving sixty-five service members and between twenty-five and fifty detainees. The twenty-seven investigations concluded that the allegations were either unsubstantiated or led to administrative action including a letter of reprimand or suspension from operations involving detainees.Footnote 176 The Chamber concludes that the non-judicial and administrative proceedings conducted by US authorities serve to perpetuate impunity for sexual and gender-based violence against male conflict-related detainees, and appear to reflect the attitude of US authorities to investigating and prosecuting such crimes, which appears to be one of trivialisation and minimisation. For the foregoing reasons, the Chamber deems the potential cases arising from crimes committed by members of US armed forces, the CIA, and the Afghan National Security Forces admissible under both limbs of the test in Article 17.
Conclusion
84. The Chamber concludes that the national proceedings conducted by Afghan and US authorities do not cover the same conduct that is subject to proceedings before the Court, as the national cases do not adequately capture the gendered basis of the crimes contained within the Prosecutor’s Request. The Chamber notes that even if there is a degree of overlap between some of the domestic cases and the cases detailed in the Prosecutor’s Request, there are gendered deficiencies in national law, particularly in Afghan law, and lack of political will on the part of the US and Afghan authorities to prosecute sexual and gender-based crimes, which mean that both states are unwilling or unable to genuinely conduct these proceedings. Although not made explicit by the text of Article 17 of the Statute, the Chamber observes that gender analysis is relevant to both limbs of the complementarity test.
85. The Chamber is therefore satisfied at this stage that potential cases arising from crimes committed by members of the Taliban, Afghan National Security Forces, US armed forces, and the CIA would be admissible under Article 17 of the Statute.
Judge Kathryn Gooding
16.5 The Interests of Justice Test in the Afghanistan Investigation
In 2017, after a decade-long preliminary examination into the conflict in Afghanistan, Prosecutor Bensouda concluded that the criteria for opening an investigation were satisfied, there being a reasonable basis to believe that Rome Statute crimes had been committed by the Taliban and Afghan National Security Forces within Afghanistan.
Implicating a Western power for the first time in the ICC’s history, she also found there was a reasonable basis to believe that Rome Statute crimes had been committed by members of the US armed forces and US Central Intelligence Agency (CIA) in Afghanistan and in secret facilities in Eastern Europe where suspected Taliban and Al Qaeda members were detained.Footnote 177
In 2019, the Pre-Trial Chamber dismissed the Prosecutor’s request to open this investigation, on the basis that the investigation would not serve the ‘interests of justice’.Footnote 178 In 2020, the Appeals Chamber reversed that decision, finding that the Pre-Trial Chamber was not empowered to adjudicate the ‘interests of justice’ question.Footnote 179 In her reimagined version of that 2020 appeal decision, Souheir Edelbi comes to that same conclusion but, in doing so, provides an original, victim-centred analysis of the ‘interests of justice’. She further finds that the Pre-Trial Chamber abused its discretion by failing to consider the views expressed by the victims who had participated in the proceedings.
Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan No.: ICC-02/17
Date: 5 March 2020
Original: English
Appeals Chamber
Before: Judge Souheir EDELBI
SITUATION IN THE ISLAMIC REPUBLIC OF AFGHANISTAN
1. The present appeal by the Prosecutor concerns the situation in the Islamic Republic of Afghanistan and the outcome of the Prosecutor’s request for authorisation of an investigation by Pre-Trial Chamber II. On 12 April 2019, the Pre-Trial Chamber unanimously held, pursuant to Article 53(1)(c), that a criminal investigation into allegations of war crimes and crimes against humanity would not serve the interests of justice and on this basis declined to authorise the Prosecutor’s request for an investigation into the situation in Afghanistan (Impugned Decision). It did so having found that there is a reasonable basis to believe the incidents underlying the Prosecutor’s request occurred and may have constituted crimes within the jurisdiction of the Court, and that the relevant requirements for admissibility had been met.Footnote 180
2. The Prosecutor appeals the Impugned Decision on the grounds that the Pre-Trial Chamber abused its discretion when assessing the scope of the ‘interests of justice’ (first ground of appeal) and erred in law by assessing the Prosecutor’s determination of the interests of justice (second ground of appeal). These issues bring into question the concept and scope of the interests of justice as formulated in Article 53(1)(c) of the Rome Statute. Therefore, the present appeal will focus on these issues as relevant to the Pre-Trial Chamber’s decision to decline to authorise the investigation into the situation in Afghanistan.
First Ground of Appeal: Did the Pre-Trial Chamber Abuse Its Discretion When Assessing the Scope of the ‘Interests of Justice’?
The Concept of ‘Interests of Justice’
3. The Prosecutor argues that the Pre-Trial Chamber abused its discretion when determining that the initiation of an investigation into the situation in Afghanistan was not in the interests of justice. The Prosecutor argues that the Pre-Trial Chamber misapprehended factors that it took into account, that it took into consideration factors that it should not have taken into account, and that it failed to take sufficient account of relevant factors.
4. The ‘interests of justice’ is of great significance to the Rome Statute’s legal framework for initiating an investigation. This is because Article 53(1)(c) of the Statute is an ‘access to justice’ provision and, consequently, triggers questions of importance for victims who are unable to secure a measure of accountability in domestic criminal jurisdictions.Footnote 181 It is an issue that the Prosecutor is obliged to consider when assessing whether to initiate an investigation. For this reason, the Appeals Chamber outlines some observations regarding the Pre-Trial Chamber’s approach to the concept.
5. First, the Appeals Chamber underlines that one of the strengths of the Court lies in creating a source of legal redress for victims where domestic avenues of justice are either limited or unavailable. This particular strength, however, is tempered by the fact that the Rome Statute is limited by design to a narrow sense of ‘justice’ in the form of criminal trials, which is intended to provide only a certain measure of individualised accountability for crimes that fall under the Statute. As one academic acknowledges, criminal trials ‘are not appropriate fora to deal with the greater context or root causes of a conflict or repressive regime’, nor are the procedural and evidential modalities of criminal law necessarily victim-friendly.Footnote 182
6. In this regard, tensions may arise between the interests of victims and the criminal law nature of the Court’s inherent functions. Judges are called upon to observe the limits of the text, purpose, and context of the Rome Statute and to apply caution to judicial reasoning to avoid stretching judicial interpretation beyond the actual text of the Statute. The Appeals Chamber acknowledges these limits in order to avoid unnecessarily inflating the expectations of victims. Victims are not served well by a discourse of ‘justice’ that ignores the inherent limits in which the Court and the Rome Statute operate. To be clear, Article 53(1)(c) is not directly concerned with substantive outcomes or broader forms of justice such as truth and reconciliation, peace agreements, or redistributive justice, which very often form part of victims’ submissions before this Court. In this regard, it is simply not designed to cater to more substantial visions of justice.
7. Instead, Article 53(1)(c) of the Statute is more narrowly concerned with the procedure for initiating an investigation. Questions of procedure, however, need not be reduced to an abstract and mechanical method of interpretation, removed from the interests of victims and their specific context and lived experiences. Such abstract reasoning would lead to unnecessary judicial detachment from those whom the law should most serve and create a false impression of objectivity that is hardly suited to the task of assessing the interests of justice under Article 53(1)(c). This is because this particular provision tilts heavily towards the interests of victims and the presumption that securing these interests requires the opening of an investigation. In this regard, the plain wording of Article 53(1)(c) supports the need for the Prosecutor to conduct a contextual assessment of the interests of justice by considering the gravity of the crimes and the interests of victims within the context of the particular situation.
8. In assessing the interests of justice, the Pre-Trial Chamber placed emphasis on the feasibility of an effective investigation in light of difficulties highlighted by the Prosecutor in securing cooperation from relevant authorities during the preliminary examination. It argued that ‘[a]n investigation can hardly be said to be in the interests of justice if the relevant circumstances are such as to make such investigation not feasible and inevitably doomed to failure’.Footnote 183 The Pre-Trial Chamber drew a distinction between the preliminary examination stage of proceedings and the investigation stage in the context of ‘timing, type of activities or resources’.Footnote 184 Having done so, it pointed to the limited resources available to carry out a complex investigation and also questioned the availability of evidence for historical crimes.Footnote 185 Of considerable note was the Pre-Trial Chamber’s finding that the protracted nature of the preliminary examination and the likely difficulties in obtaining cooperation from state authorities at the investigation stage.Footnote 186 According to the Pre-Trial Chamber, the changing ‘political landscape’ in Afghanistan and ‘key states (both parties and non-parties to the Statute)’ – the latter presumably referring to the United States – was likely to hamper a successful investigation.Footnote 187 As a result of these challenges, it found that an investigation was likely to be contrary to the interests of victims and was also likely to undermine the Court’s legitimacy.Footnote 188
9. The Pre-Trial Chamber’s reasoning reflects the inherent tension between the broader interests of justice and the interests of victims. There may be situations where there are significant gravity issues or substantial reasons to believe that a criminal investigation would not serve the interests of justice in a particular situation. The interests of justice analysis must be conducted on a case-by-case basis, noting that where the alleged crime is grave and serious, the Prosecutor is not required under Article 53(1)(c) to balance the interests of victims against any other criterion or factors. As such, the broad wording of Article 53(1)(c) tilts the provision towards the interests of victims. This is made clearer when Article 53(1)(c) is read in conjunction with the Statute’s criminal justice imperative located in Article 17 of the Statute establishing the principle of complementarity. Complementarity is not only a core structuring principle that governs the Court’s operations, but it also embeds a criminal justice imperative in the Rome Statute which guides the application and scope of the interests of justice. The wording of the interests of justice in Article 53(1)(c) together with the complementarity principle dictates that the Prosecutor must presume that an investigation is in the interests of justice unless there are substantial reasons to suggest otherwise.
10. However, it should not be presumed that the constraining factors identified by the Pre-Trial Chamber (such as difficulty securing cooperation, complex nature of an investigation, limited resources) necessarily always undermine or contradict the interests of victims. Indeed, they may reflect the diverse and divergent interests of victims. For example, some victims may demand a more substantial form of accountability than what carceral justice can offer. Some victims may wish to avoid criminal justice altogether due to fears of retaliation. As noted by the Registry, a group of victims within the victims’ representations expressed the view that they did not wish the Pre-Trial Chamber to authorise an investigation because of ‘security concerns’ and ‘doubts as to the likelihood that the Prosecutor’s investigation would result in the perpetrators being brought to justice’.Footnote 189
11. Although Article 53(1)(c) operates to frame criminal justice as inherently positive for victims, caution must be exercised in relation to this assumption. This may not bear out for all victims within a situation. Victims may articulate competing and complex views or express their interests, contrary to the broad assumption that international criminal justice is an inherent good. Indeed, victims may regard the highly structured rules and procedures of criminal justice as antithetical to their own conceptions of justice and lived realities as victims. Therefore, where criminal justice remains an inherently limited form of accountability for dealing with complex injustices, substantive or transformative change, where available, in societies impacted by conflict and atrocity should be encouraged at an early stage of proceedings.Footnote 190 In these circumstances, the Prosecutor may choose to exercise discretion by refraining from opening an investigation in the context of a referral or by declining to seek authorisation to open an investigation proprio motu, thereby indirectly lending support to the substantive interests of victims who seek to pursue structural change.
Victims’ Representations
12. In the present situation before the Appeals Chamber, however, the express views of the victims were almost uniform in calling for a criminal investigation.Footnote 191 Of the 699 victim applications received by the Pre-Trial Chamber, 680 welcomed an investigation.Footnote 192 In addition, a separate group of victims ‘LVR 1’, ‘LVR 2’, and ‘LVR 3’, representing eighty-two victims, six victims, and an individual victim respectively, filed notices of appeal against the Impugned Decision in favour of authorising a criminal investigation.Footnote 193 There is no indication that the Pre-Trial Chamber took the views of the victims as expressed in the victims’ representations into account when assessing the Prosecutor’s request, nor did the Pre-Trial Chamber invite the victims to address whether an investigation would be in the interests of justice.Footnote 194
13. The Appeals Chamber notes that prior to reaching its decision, the Pre-Trial Chamber ordered the Prosecutor to provide additional information in relation to ‘allegations attributed to special forces of a number of international forces operating in Afghanistan’ and ‘the structure, organisation and conduct of the Afghan Forces, the structure, organisation of the Islamic State operating in Afghanistan, and the structure and interrogation policies of the United States of America for specific time periods’. In response, the Prosecutor provided 806 items of supporting material, amounting to 20,157 pages.Footnote 195 However, the Pre-Trial Chamber assessed the materials in relation to the effectiveness of an investigation rather than the interests of justice. It drew negative inferences regarding the prospects of a successful investigation including the availability of resources to carry out a complex investigation contrary to the interests of the victims. For example, as stated in the Impugned Decision, ‘[i]f the judicial authorisation is granted, the Prosecutor is required to investigate thoroughly and expeditiously; this may prove critically difficult in a complex situation like the one under scrutiny’.Footnote 196 The Pre-Trial Chamber further stated that:
[I]n light of the nature of the crimes and the context where they are alleged to have occurred, pursuing an investigation would inevitably require a significant amount of resources … this will go to the detriment of other scenarios (be it preliminary examinations, investigations or cases) which appear to have more realistic prospects to lead to trials and thus effectively foster the interests of justice, possibly compromising their chances for success.Footnote 197
14. Despite the possible complexities in an investigation of this kind involving many years of examination and several states parties and non-party states to the Statute, the Pre-Trial Chamber should have given proper and adequate weight to the interests of victims as articulated by them. The failure to listen to the victims while deferring to pressure from the United States – a non-party state – proved detrimental to the Pre-Trial Chamber’s assessment of the Prosecutor’s request. As the victims themselves argued:
[T]he broader background to this filing outside the Court and its judicial proceedings cannot be ignored. Blatant attacks on the Court and those contributing to its work have been made at the highest levels, particularly by representatives of the United States government in reaction to the Prosecutor’s Request. Such actions cannot but constitute an interference with the independence of the Court and the Prosecution. More troubling still is the apparent suggestion in the Decision (para. 94) that far from resisting such attacks, the Court has allowed itself to be cowed by them.Footnote 198
15. In relation to questions of legitimacy, the Appeals Chamber notes that as a matter of law general concerns regarding the impact of an unsuccessful investigation upon the Court’s credibility are immaterial to the Pre-Trial Chamber’s determination of whether or not to authorise an investigation under Article 15(4) of the Statute. Ironically, the Impugned Decision had the effect of undermining the Court’s legitimacy by deferring to political pressure from the United States.Footnote 199 Not only did the focus on the effectiveness of an investigation lead to speculation on the victims’ interests, contrary to their express views, but it also denied the victims a right to be heard and to have their views taken into account in determining whether to authorise the investigation.
16. Institutional legitimacy does not take precedence over the actual interests of victims as expressed by the victims themselves in relation to whether or not to authorise an investigation. In the context of victims in Afghanistan, ‘international law makes sense only in the context of the lived history of the peoples of the Third World’, meaning that it is by evaluating legal rules and procedures and prioritising the lived experience of victims rather than the protection of the Court’s legitimacy that this Court may thereby embody and promote global justice effectively.Footnote 200
Gravity of Alleged Crimes in Light of the Interests of Victims
17. The Appeals Chamber notes that the Impugned Decision also fails to consider the interests of victims based on the gravity of the alleged crimes. Since 11 September 2001, Afghanistan has been the subject of military attacks and foreign intervention from the United States in response to terrorism attacks on Washington and New York.Footnote 201 Furthermore, the grave and serious allegations of crimes that form the basis of the Prosecutor’s request to authorise an investigation form part of the intensification and perpetuation of anti-Muslim violence carried out on a global scale in the wake of the ‘war on terror’. Racialised stereotypes of the ‘Muslim terrorist’ and state policies, practices, and legislation depicting Muslims and their religion through a propensity towards violence have shaped how the war on terror has been carried out by states along intersecting lines of geography, race, ethnicity, religion, and gender.Footnote 202 Attacks on civilians, cruel treatment and torture, and humiliating and degrading treatment of detainees in and from Muslim-majority countries are by now are a well-known phenomenon.Footnote 203 These harms are not only part of a racialised stereotype of Muslims but also intersect with gender and the effects of prolonged war on women and children.
18. Thus, considering the particular gravity of the alleged crimes, the Appeals Chamber notes that the materials provided by the Prosecutor supported two outcomes: either the authorisation of an investigation or a request for further additional information from the Prosecutor under Rule 50(4) of the ICC Rules of Procedure and Evidence. Given the Pre-Trial Chamber’s particular concern regarding the length of the examination, it could have sought additional information to further clarify the scope and conduct of any potential investigation into cross-border victims of aerial bombardment who are named in the proceedings. For example, cross-border victims made submissions to the Appeals Chamber that they had presented the Prosecutor with information about civilians impacted by drone strikes launched from Afghanistan into Pakistan.Footnote 204 They argued that the Prosecutor ignored the submissions in the request, with the result that the position of the cross-border victims as to whether the Prosecutor intended to pursue an investigation into their complaints was unclear.Footnote 205
19. Further, it would have been appropriate to seek additional information regarding the position of women in any future investigation. As was highlighted by the Registry, of 165 individual representations where it was in a position to identify relevant data regarding the gender and age of victims, it found that only 10 representations were introduced by or on behalf of women despite indications that women had clearly suffered harm.Footnote 206 In some cases, women were not listed as victims by representatives acting on behalf of women. Several factors may explain this, including the location of women in conflict areas, the predominant role of men in traditional justice resolution practices, and the underreporting of sexual and gender-based violence in Afghanistan.Footnote 207 Accordingly, it would have been appropriate to seek clarification on how an investigation would incorporate sexual and gender-based crimes against women given the limited representations by or on behalf of women and the dominant role played by organisations and men in the representation of the victims.
20. Based on the above, the Appeals Chamber finds that the Pre-Trial Chamber plainly abused its discretion when giving priority to factors which it should not have taken into account in the first place while giving insufficient weight to factors that it should have taken into account, such as the interests of victims. Further, it failed to exercise its discretion in an appropriate manner by requesting further information from the Prosecutor in order to determine whether to authorise the investigation.
Second Ground of Appeal: Did the Pre-Trial Chamber Err in Law by Assessing the Prosecutor’s Determination of the Interests of Justice?
21. Contrary to the Impugned Decision, there are several factors such as the text of Article 53(1) that dictate that an investigation should have been opened in the present situation. Starting with the text of Article 53(1)(C), the Prosecutor is required to consider the following factors when deciding whether to initiate an investigation:
(a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;
(b) The case is or would be admissible under Article 17; and
(c) Taking into account the gravity of the crime and the interests of the victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
22. Firstly, in contrast to the first and second criteria, the plain text of the third criterion makes plain that there is no requirement for the Prosecutor to make a positive determination to the effect that an investigation is in the interests of justice when deciding whether to initiate an investigation. The text of Article 53(1)(c) is deliberately formulated in the negative (‘would not serve’), meaning that the assessment of the interests of justice generally does not arise unless there are substantial reasons or facts and circumstances to the contrary. Unlike the first and second criteria, which require the application of exacting legal standards, the Prosecutor’s evaluation of whether the opening of an investigation would not serve the interests of justice is predicated on the exercise of prosecutorial discretion.Footnote 208 As the Pre-Trial Chamber in the Kenya situation correctly identified: Unlike sub-paragraphs (a) and (b), which require an affirmative finding, sub-paragraph (c) does not require the Prosecutor to establish that an investigation is actually in the interests of justice. Indeed, the Prosecutor does not have to present reasons or supporting material in this respect.Footnote 209
23. Secondly, Article 53(1)(c) operates presumptively in favour of a criminal investigation, which is deemed in the interests of justice as a matter of law. This is reflected in the high threshold that the Prosecutor must satisfy to justify a waiver of a criminal investigation. Article 53(1)(c) creates an expectation that the Prosecutor will proceed to an investigation, while limiting the scope of the discretion to waive an investigation.Footnote 210 There can be reasons not to proceed with an investigation, but it is only when there are ‘substantial reasons to believe’ that an investigation would not serve the interests of justice that this narrow exception prevails. This is because the function of Article 53(1)(c) is to further the imperative of criminal justice as found in the complementarity principle under Article 17 of the Statute. It must be remembered that the text of Article 53(1)(c) is designed to limit the Prosecutor’s ability to waive a criminal investigation and therefore the criminal law nature of the Statute guides the meaning and scope of the interests of justice.
24. Thirdly, the Pre-Trial Chamber is not called on under Article 15(4) of the Statute to review the Prosecutor’s assessment under Article 53(1)(a)–(c) of the Statute. Under the text of Article 15(4), the Pre-Trial Chamber’s function is confined to an assessment of questions of fact and jurisdiction when it is determining whether to authorise an investigation, that is: (1) is there a ‘reasonable basis to proceed with an investigation’ in the sense of whether crimes have been committed and (2) does the situation or case appear to fall within the jurisdiction of the Court? If both questions are answered in the affirmative, then the Pre-Trial Chamber must authorise the investigation. Prior to making its decision, it remains open to the Pre-Trial Chamber to request further information to determine whether the factual or jurisdictional requirements of a situation have been satisfied in accordance with Article 15(4) of the Statute. Having found that these requirements were met in the present situation, the Pre-Trial Chamber should have authorised the investigation.
25. Fourthly, to the extent that judicial review is available regarding the Prosecutor’s assessment of the interests of justice, then the sole basis for such review lies with Article 53(3)(b) of the Statute. In contrast to Article 53(3)(a), which refers to the referral provisions of the Statute specifically, Article 53(3)(b) is broadly worded and nothing in the wording of this provision suggests it is limited to referrals. Under Article 53(3)(b), and consistent with the imperative of criminal justice under the complementarity principle, the Pre-Trial Chamber’s review powers are triggered only when the Prosecutor decides not to proceed with an investigation based solely on the interests of justice in Article 53(1)(c).
26. If a Prosecutor determines that there is no reasonable basis to proceed based solely on Article 53(1)(c), then they must notify the Pre-Trial Chamber of their decision. In these circumstances, the Pre-Trial Chamber may, on its own motion, conduct a review of the decision by invoking Article 53(3)(b) of the Statute. Its judicial review, however, moves in only one direction, towards confirming the Prosecutor’s discretion to waive a criminal investigation. The Pre-Trial Chamber has no power to review a decision by the Prosecutor to proceed with an investigation and cannot compel the Prosecutor to start a criminal investigation. The Prosecutor may, at any time, reconsider the decision not to initiate an investigation pursuant to Article 53(4) based on new facts or information.
27. The Appeals Chamber finds that a plain reading of Article 53, in conjunction with Article 15(4) of the Statute, shows that the Pre-Trial Chamber is only required to assess the information contained in the Prosecutor’s request in relation to two matters: whether there is a factual basis to proceed where crimes have been committed and whether the alleged crimes fall within the Court’s jurisdiction. In this regard, a decision by the Prosecutor to proceed with an investigation is not reviewable by the Pre-Trial Chamber. Judicial review is available only when the Prosecutor decides that a criminal investigation would not serve the interests of justice. In these circumstances, there is only a narrow scope for judicial review and the Pre-Trial Chamber can only confirm the Prosecutor’s decision to waive a criminal investigation. Based on the foregoing, the Pre-Trial Chamber plainly erred when assessing the Prosecutor’s determination of the interests of justice.
Determination on the Merits of the Appeal
28. The Appeals Chamber finds that the Pre-Trial Chamber plainly exercised its discretion incorrectly due to taking into account factors it should not have taken into account while ignoring factors it should have taken into account and failing to exercise its discretion by requesting further information. It thereby abused its discretion when determining whether to authorise an investigation.
29. Furthermore, the Appeals Chamber concludes that the Pre-Trial Chamber had no role in assessing the Prosecutor’s determination regarding the interests of justice in this situation. In reaching this conclusion, the Appeals Chamber notes that the Pre-Trial Chamber should have limited its assessment to the factual and jurisdictional basis of the request which required it to authorise the investigation. Instead, it sought to block the investigation by choosing to exercise its discretion in a manner that was contrary to the express views of the victims and the plain text of Articles 15(4) and 53(1)(c) of the Statute. As a result, victims were denied the right to be properly heard and to have their interests reflected in the Pre-Trial Chamber’s decision regarding the authorisation of an investigation. Had it exercised its discretion correctly, then it is likely the Pre-Trial Chamber would have reached a different outcome.
Conclusion on Appropriate Relief
30. In sum, the Appeals Chamber considers it appropriate to amend the Impugned Decision to the effect that the Prosecutor is authorised to commence an investigation into allegations of crimes set out in the Prosecutor’s request. The Appeals Chamber also considers it appropriate for the Prosecutor to clarify the scope of any potential investigation in response to the cross-border victims of aerial bombardment. Finally, it considers it appropriate for the Prosecutor to clarify the position of women within the scope of any future investigation and how the Prosecutor intends to incorporate the interests of victims of sexual and gender-based violence where there are insufficient contributions by or on behalf of women in the victims’ representation.
Judge Souheir Edelbi
16.6 Gender-Based Persecution in the Afghanistan Investigation Authorisation
In 2019, Pre-Trial Chamber II deniedFootnote 211 the Prosecutor’s request to authorise an investigation into crimes allegedly committed on the territory of the Islamic Republic of Afghanistan since 1 March 2003.Footnote 212 While the Pre-Trial Chamber agreed that the jurisdiction, complementarity, and gravity tests were met, ultimately the Chamber decided an investigation would not be in the interests of justice.
In this rewritten decision, Susana SáCouto focuses on the allegations concerning gender-based persecution by the Taliban and other armed groups and closely analyses the Rome Statute’s definition of ‘gender’ per Article 7(3) and the definition of ‘persecution’ per Articles 7(1)(h) and 7(2)(g) of the Rome Statute. Using the Vienna Convention on the Law of Treaties as well as the ICC Office of the Prosecutor’s 2014 Policy Paper on Gender-based Crimes, SáCouto concludes that gender-based persecution includes persecutory acts that are motivated by the perpetrators’ beliefs, attitudes, and perceptions regarding appropriate social behaviour based on gender. Her decision stresses that without this understanding of gender, the Court would not be able to recognise the full scope of gender-based harms committed against women and girls in Afghanistan, including the attacks by the Taliban and affiliated armed groups aimed at preventing women and girls from studying, teaching, working, or participating in public affairs. Moreover, Judge SáCouto addresses whether and how gender-based persecution intersects with other grounds of persecution, and finds that characterising the persecution against Afghan female politicians, public servants, and students as having been based on intersecting gender and political grounds more accurately captures the basis of the discrimination underlying this crime and the aggravated nature of the harms resulting from it.
Decision pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan No.: ICC-02/17
Date: 12 April 2019
Original: English
PRE-TRIAL CHAMBER II(B)
Before: Judge Susana SÁCOUTOFootnote 213
SITUATION IN THE ISLAMIC REPUBLIC OF AFGHANISTAN
PRE-TRIAL CHAMBER II (the Chamber) of the International Criminal Court (the Court) issues this Decision pursuant to Article 15 of the Rome Statute (the Statute) on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan (Afghanistan).
Procedural History
1. By a letter of 30 October 2017, the Prosecutor notified the President of the Court, in accordance with Regulation 45 of the Regulations, of her intention to submit a request for authorisation of an investigation into the situation in the Islamic Republic of Afghanistan pursuant to Article 15(3) of the Statute.Footnote 214
2. On 20 November 2017, the Prosecutor submitted the Request for Authorisation of an Investigation pursuant to Article 15 (Prosecutor’s Request), together with 14 annexes, in which the Pre-Trial Chamber is requested ‘to authorise the commencement of an investigation into the Situation in the Islamic Republic of Afghanistan in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002’.Footnote 215
3. Throughout the period 20 November 2017 to 31 January 2018, the Court received the representations of victims, which were transmitted to Pre-Trial Chamber III on a rolling basis, together with reports containing a preliminary assessment of the representations.Footnote 216
4. On 20 February 2018, the Registry submitted a final consolidated report summarising the process of collecting the victims’ representations and the victims’ views on whether or not they wish an investigation into the situation in Afghanistan to be authorised.Footnote 217
5. On 16 March 2018, the Presidency recomposed the Chambers of this Court and assigned the situation in Afghanistan to this Chamber.Footnote 218
Prosecutor’s Submissions
6. The Prosecutor’s submission asserts that the people of Afghanistan have suffered acts of serious violence and other violations of their fundamental rights over the past four decades as waves of armed conflict and security crises have plagued the country.Footnote 219 The Prosecutor submits that some of these acts constitute crimes within the jurisdiction of the Court, namely crimes against humanity under Article 7 and war crimes under Article 8 of the Statute, and seeks authorisation to open a formal investigation into such crimes.
7. The Request lists the groups allegedly responsible for the crimes for which authorisation to investigate is sought as follows: (1) the Taliban and other armed groups; (2) the Afghan National Security Forces, including the Afghan National Army, the Afghan National Police, the Afghan Local Police, the Afghan National Border Police, and the National Directorate for Security); and (3) US armed forces and the Central Intelligence Agency. The prosecution alleges that each of these groups is responsible for war crimes in the context of an armed conflict not of an international character under Article 8 of the Statute. Further, the prosecution asserts that the first category, the Taliban and other armed groups, are also responsible for crimes against humanity under Article 7, including persecution on the ground of ‘gender’ under Article 7(1)(h) of the Statute.
Victims’ Representations
8. Overall, the Court has received a total of 794 representations in Dari and Pashto, as well as Arabic, English, and German of which 699 were transmitted to the Pre-Trial Chamber on behalf of the following victims: 668 representations on behalf of 6,220 individuals; 17 representations on behalf of 1,690 families; 13 representations on behalf of several millions of victims, including 26 villages; and 1 representation on behalf of an institution.
9. Notably, the report received from the Registry on Victims’ Representations pursuant to the Pre-Trial Chamber’s Order ICC-02/17-6 of 9 November 2017 indicates that one of the representations it received ‘called on the Prosecutor to investigate all crimes perpetrated against women’ and that ‘a number of representations requested the persecution against certain specific groups … be investigated’.Footnote 220
10. Further, the Registry found that ‘victims overwhelmingly support an investigation into all crimes against humanity and war crimes committed in Afghanistan since 1 May 2003’.Footnote 221
Determination by the Chamber on the Existence of a Reasonable Basis to Proceed
Jurisdiction Ratione Materiae
11. Although at the Article 15 stage, the Appeals Chamber has stated that ‘[o]ften no individual suspects will have been identified at this stage, nor will the exact conduct nor its legal classification be clear’,Footnote 222 the facts presented in the Prosecutor’s submissions and victims’ representations suggest that there is a reasonable basis to believe that a number of crimes within the jurisdiction of the ICC have been committed.
12. The Chamber will first consider the allegation that the Taliban and other armed groups are responsible for the crime against humanity of gender-based persecution.
Gender-Based Persecution by the Taliban and Other Armed Groups
13. According to the Prosecutor’s Request, since mid-2003 civilians have suffered greatly as anti-government forces, aligned with the Taliban and other armed groups, attacked civilians perceived or believed to be associated with or supportive of the Afghan government, related to or working with the international community, and/or perceived to oppose Taliban rule and ideology, including women and girls who worked, took part in public affairs, and attended school past the age of puberty.Footnote 223 Attacks were also directed at civilian property and objects related to the targeted civilians, and carried out in public places, including schools, hospitals, and mosques, and in private.Footnote 224 The prosecution submits that the nature of the attacks varied, and included killings, severe deprivation of physical liberty, and other fundamental human rights.Footnote 225 The prosecution submits that conduct underlying some of these attacks qualifies as the crime against humanity of persecution on the ground of gender under Article 7(1)(h) of the Statute,Footnote 226 which defines the crime as follows:
Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.
14. The term ‘persecution’ is defined in paragraph 7(2)(g) as ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’. In its Request, the prosecution submits that the Taliban and other armed groups targeted civilians and deprived them of their fundamental rights on the basis of their gender and political opinion.
Interpretation of the Law
Definition of Gender under the Rome Statute
15. Paragraph 7(3), which is referenced in Article 7(1)(h), defines gender as follows: ‘For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.’
16. In interpreting the Rome Statute, this Court has routinely applied the Vienna Convention on the Law Treaties (VCLT).Footnote 227 Article 31(1) of the VCLT states that: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’Footnote 228
17. The phrase ‘the two sexes, male and female, within the context of society’ suggests that the definition includes societal perceptions and experiences of what it means to be ‘male’ and ‘female’. Although this phrase could be read to define gender merely as a biological category, doing so would ignore the second part of the phrase, ‘within the context of society’, and would, thus, be inconsistent with a good-faith reading of the phrase.
18. Moreover, the drafting history of Article 7(3) – which is relevant as a supplementary means of interpretation under Article 32 of the VCLTFootnote 229 – affirms that the definition of gender encompasses more than a biological category.Footnote 230 The Chamber will briefly detail that history here in order to shed light on the meaning of the Article 7 definition of ‘gender’, and thereby the crime of gender-based persecution under the Statute.
19. The inclusion of gender-based persecution as a crime against humanity in the Statute was novel. ‘Gender’ as a ground for persecution had not previously been enumerated or defined either in statute or international criminal jurisprudence. The Court’s twentieth-century antecedents, the ad hoc international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), created by the UN Security Council, had jurisdiction over persecution as a crime against humanity, but only on political, racial, and religious grounds.Footnote 231 Gender-based persecution therefore required delineation in the Statute. Defining the ‘gender’ part of the crime proved contentious in the negotiations leading up to the adoption of the Rome Statute.Footnote 232
20. A majority of states favoured a definition that was consistent with the way in which the term had been used in the UN and other international fora: ‘gender’ refers to a social construction of what it means to be male or female in a given time and place.Footnote 233 In this understanding, these social constructs dictate and moderate norms of behaviour and appearance for all individuals, as well as power relations between people of different genders and their respective access to opportunities and resources.Footnote 234
21. On the opposing side was a small minority of states that insisted on a narrow definition that confined ‘gender’ to a description of only two biological sexes, namely female and male.Footnote 235 In their view, there are only two ‘genders’ which are not mutable, and which are wholly biologically determined.Footnote 236
22. As is the way in treaty negotiations, compromises were made. A definition of ‘gender’ was included in Article 7(3) that appears to attempt to balance the two opposing views as to the correct meaning of ‘gender’. The definition has been described as ‘intentionally opaque’Footnote 237 and ‘constructively ambiguous’.Footnote 238
23. In the ICC’s ‘Policy Paper on Sexual and Gender-Based Crimes’ (the SGBC Policy Paper) adopted in 2014,Footnote 239 the ICC Prosecutor interprets the definition of gender as follows: ‘“Gender”, in accordance with article 7(3) of the Rome Statute … refers to males and females, within the context of society. This definition acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.’Footnote 240
24. Notably, the SGBC Policy Paper distinguishes ‘gender’ from ‘sex’. Therefore, it defines ‘sex’ for the purpose of the policy as: ‘“Sex” refers to the biological and physiological characteristics that define men and women.’Footnote 241
25. The SGBC Policy Paper’s approach is not only consistent with a good-faith reading of Article 7(3) and the Statute’s drafting history of this article, but also with international human rights law and practice,Footnote 242 as required by Article 21(3) of the Rome Statute.Footnote 243
26. Indeed, twenty-four UN experts who provided comments on the definition of gender contemplated by the International Law Commission in its consideration of a new draft treaty on crimes against humanity observed that ‘[i]nternational human rights law recognizes gender as the social attributes associated with being male and female’, and that twenty-five years of practice has demonstrated ‘wide recognition of gender as a social construct that permeates the context in which human rights abuses take place’.Footnote 244
27. Thus, this Chamber understands ‘gender’ to mean not only biological differences between males and females, but also societal beliefs, attitudes, perceptions, and experiences of what it means to be ‘male’ and ‘female’.
28. Moreover, in the context of Article 7(1)(h) and in line with the ICC Elements of Crimes,Footnote 245 the term ‘gender’ describes the grounds on which a group is victimised, meaning persecution on the grounds of gender includes persecution that takes place on the grounds of socially constructed ideas about what it means to be male or female, rather than solely because the members of the group are male or female. Thus, gender-based persecution includes persecutory acts that are motivated by the beliefs, attitudes, and perceptions of the perpetrators regarding appropriate social behaviour for males and females.
29. This Chamber considers it important to make clear, as other tribunals have, that as long as the acts constitute a severe deprivation of victims’ fundamental rights under international law, it is legally irrelevant whether local laws, religion, or customs permit the behaviour that resulted in those violations.Footnote 246 Thus, even in societies where the idea of equality among certain groups is contentious, or where discrimination on the basis of gender is the norm, severe violations of fundamental rights contrary to international law can amount to persecution. Indeed, such violations may constitute persecution regardless of whether they are accepted, tolerated, or formally legalised in a given community.
30. Finally, this Chamber recognises that groups may be targeted, or have different experiences of crimes, because of intersecting and inextricably linked identity factors, which may include gender but also political, racial, national, ethnic, cultural, religious, or other grounds. As such, it will take an intersectional approach to the crime of persecution, meaning the Chamber will assess not only whether harms were inflicted on victims on the grounds of gender but also whether and how gender-based persecution intersected with other grounds of persecution, and the impact of persecution on the basis of these intersecting grounds on the targeted group.Footnote 247 The Chamber considers that this approach most accurately captures the lived experiences of those who are targeted for persecution.
Intentional and Severe Deprivation of Fundamental Rights Contrary to International Law
31. The Chamber considers that, as this Court has previously found, for the purpose of identifying those rights the intentional and severe deprivation of which may constitute persecution, it should look to international standards on human rights such as those laid down in the Universal Declaration of Human Rights (UDHR), the two United Nations Covenants on Human Rights, and other international instruments on international human rights.Footnote 248 Drawing upon various provisions of these texts, the Chamber considers that it is possible to identify a set of fundamental rights pertaining to any human being, the gross infringement of which may amount to persecution. For instance, the deprivation of rights infringed by the crimes of genocide, crimes against humanity, or war crimes – such as the right to life, liberty, and the security of person, and the right not to be subjected to torture or cruel, inhuman, or degrading treatment or punishment, or to rape and sexual slavery, or to arbitrary arrest, detention, exile, or imprisonment – certainly amount to persecution.Footnote 249
32. However, as other tribunals have found, ‘there is no comprehensive list of what acts can’ amount to violations of fundamental rights contrary to international law.Footnote 250 Indeed, they may also include discriminatory acts not enumerated in the court’s statute, such as those involving ‘physical or mental harm or infringements upon individual freedom’.Footnote 251 For instance, as the ICTY has noted:
The Judgment of the [International Military Tribunal at Nuremberg] included in the notion of persecution a variety of acts which, at present, may not fall under the Statute of the International Tribunal, such as the passing of discriminatory laws, the exclusion of members of an ethnic or religious group from aspects of social, political, and economic life, the imposition of a collective fine on them, the restriction of their movement and their seclusion in ghettos, and the requirement that they mark themselves out by wearing a yellow star. Moreover, and as mentioned above, several individual defendants were convicted of persecution in the form of discriminatory economic acts.Footnote 252
33. Moreover, the Justice case, prosecuted by the United States after World War II, recognised the use of ‘judicial process as a powerful weapon for the persecution and extermination of all opponents of the Nazi regime’.Footnote 253 This case recognised that acts of persecution could include the ‘passing of a decree by which Jews were excluded from the legal profession; the prohibition of intermarriage between Jews and persons of German blood and the severe punishment of sexual intercourse between these groups; and decrees expelling Jews from public services, educational institutions, and from many business enterprises’.Footnote 254
34. Thus, acts such as: other forms of sexual violence; harassment, humiliation, and psychological abuse; destruction of means of subsistence; restrictions on the types of professions and on family life; and other attacks on political, social, or economic rightsFootnote 255 can also amount to persecution, as long those acts were committed ‘in connection with any crime within the jurisdiction of the Court’.Footnote 256
35. As this Court has previously held, the determination as to which acts will result in the severe deprivation of one or more individuals’ fundamental rights must be made on a case-by-case basis.Footnote 257 Further, it is this Chamber’s view that all acts must be examined in context and cumulatively because although certain acts may not on their own amount to a violation of fundamental rights (and therefore persecution), they may do so when considered in light of other acts and the context in which they occur.Footnote 258 When assessing the severity of deprivations of fundamental rights, this Chamber considers it important to conduct a detailed analysis not only of the harms but also the impact of the discriminatory acts on the targeted group.
Legal Findings: Gender-Based Persecution by the Taliban
36. Although this is not this Court’s first opportunity to address the crime of gender-based persecution,Footnote 259 in the one case where it was considered at the confirmation of charges stage, persecution was not confirmed and gender-based persecution was ultimately not discussed in the confirmation of charges decision.Footnote 260 The Chamber considers that – in light of enduring misconceptions about ‘gender-based crimes’, such as the notion that such crimes are limited to rape and other forms of sexual violenceFootnote 261 – it is particularly important for this Chamber to address the scope and contours of gender-based persecution in the context of the Afghanistan situation. Indeed, this Chamber finds it critical to examine both individual and cumulative harms, in particular non-sexual gendered harms, experienced by victims of persecution and to explore the breadth of fundamental rights the deprivation of which are implicated by this crime and which rarely have been made visible.
37. In this regard, the Chamber finds it particularly noteworthy that one of the organisations consulted during the Registry’s review of victims’ views on the opening of this investigation stressed that ‘most “traditional justice resolution” practices (“jirgas”) are male-only affairs, with crimes against women almost entirely unrepresented in these fora, unless as a matter of family “honour”’. The organisation ‘concluded that the obstacles to women using a “formal” justice system are enormous’.Footnote 262
Deprivation of Fundamental Rights
38. The Prosecutor’s allegations of gender-based persecution include crimes committed by the Taliban and affiliated armed groups against female politicians, public servants, and students in Afghanistan.Footnote 263 The Prosecutor alleges that: ‘Pursuant to the ideology and rules of the Taliban, women and girls have been deliberately attacked by the Taliban and affiliated armed groups to prevent them from studying, teaching, working or participating in public affairs, through intimidation, death threats, abductions and killings.’Footnote 264
39. Specifically, the Prosecutor’s allegations and supporting documents indicate that the Taliban destroyed girls’ schools and directed threats and acts of violence at teachers, administrators, and students ‘who refused to abide by the Taliban’s rules’.Footnote 265 These attacks deprived ‘thousands of girls of their right to education’.Footnote 266
40. Moreover, the Taliban threatened and/or killed female politicians, female police officers, and women at or on their way to work.Footnote 267 As the prosecution notes, the ‘efforts to prevent women from participating in the workforce, education, and governance and politics, have resulted in major disruption to the ability of women to exercise many of their fundamental rights’.Footnote 268
41. In other words, women and girls were deprived of their fundamental rights to education, to work, to participate in public life, to physical and bodily integrity, to liberty and freedom of movement, to expression, to assemble, and to be free from arbitrary deprivations of life, inhuman and degrading treatment or punishment, and discrimination on the basis of sex, all of which they enjoyed pursuant to international law.Footnote 269
42. Moreover, these deprivations had far-reaching consequences, with long-lasting impacts on the lives of the victims, their families, and their communities. For instance, the attacks against schools, as well as the threats and violence directed at female students who refused to abide by the Taliban’s rules by attending school, not only resulted in the violation of the girls’ physical and bodily integrity – some of whom were burned, blinded, and disfigured through acid attacksFootnote 270 – but also reduced or eliminated their prospects of continuing their education, disrupting and/or limiting their future ability to work or participate in public life. As the Prosecutor’s Request indicates, these restrictions ‘led to severe economic hardship due to loss of employment and income’.Footnote 271
43. Importantly, these consequences affected not only those who actually opposed or were perceived to oppose Taliban rule and ideology, but also those who complied with the restrictions in order to avoid punishments or reprisals. As the Prosecutor’s Request and supporting documentation demonstrate, as a result of the attacks, ‘countless other women and girls have reportedly stopped going to school or working due to the attendant climate of fear’.Footnote 272 Given the high rate of male casualties during the conflicts in Afghanistan, many women were the primary or only breadwinners in the family. The systematic deprivation of the right to education and to work meant increased levels of impoverishment for women, girls, and their families, ‘with poverty forcing many women to give their daughters in marriage in exchange for debts or to take their children out of school often to work’.Footnote 273
44. Some of these acts – such as the killings and acid attacks – violate rights infringed by other Rome Statute crimes, such as murder and inhumane acts, and thus clearly amount to persecutory acts if committed on the basis of one of the grounds within Article 7(1)(h). This Chamber finds it important to stress, however, that other acts – such as preventing women and girls from participating in aspects of social, political, and economic life – also deprive victims of fundamental rights and constitute persecutory acts when committed on the basis of one of the protected grounds.Footnote 274
45. Further, this Chamber finds that when viewed in context and cumulatively, these acts constitute a severe deprivation of victims’ fundamental rights. Having examined not only direct harms to the women and girls targeted by the Taliban, but also the long-lasting adverse impacts of these acts on the ability of victims and their families to subsist and on women’s and girl’s access to critical services and support, this Chamber finds that women and girls in Afghanistan were severely deprived of their fundamental rights.
46. In addition, this Chamber finds that these acts were committed ‘in connection with’ other ICC crimes, as required per Articles 7(1)(h) and 7(2)(g) of the Rome Statue. As the Prosecutor’s Request and supporting documents indicate, the Taliban had a policy ‘to attack the civilian population in order to seize power from the Government of Afghanistan by lethal force’ and pursued this policy by deliberately targeting civilians perceived or believed to be associated with or supportive of the Afghan government, related to or working with the international community, and/or perceived to oppose Taliban rule and ideology, ‘including women and girls who worked, took part in public affairs, and attended school past the age of puberty’.Footnote 275 Thus, the persecutory acts against women and girls were committed in connection with the other crimes against humanity in furtherance of this policy, including murder and deprivations of physical liberty.
On the Grounds of Gender
47. As discussed earlier, persecution on the grounds of gender includes persecution that takes place on the grounds of the perpetrators’ socially constructed ideas about what it means to be male or female, rather than solely because the members of the group are biologically male or female. Thus, gender-based persecution includes persecutory acts that are motivated by the perpetrators’ beliefs, attitudes, and perceptions regarding appropriate social behaviour for males and females. Significantly, without this understanding of gender, this Chamber would not be able to recognise the full scope of gender-based harms committed against women and girls in Afghanistan, including the attacks by the Taliban and affiliated armed groups aimed at preventing them from studying, teaching, working, or participating in public affairs.
48. The sources supporting the Prosecutor’s Request indicate that the Taliban’s attacks against women and girls were animated by their interpretation of Islam and beliefs about the proper role of women and girls in society. For instance, credible sources cited by the prosecution demonstrate that the Taliban and affiliated armed groups ‘believe that girls should stop attending school past puberty’.Footnote 276 These and other sources likewise show that the Taliban and affiliated groups believe that women should not teach, work, or participate in public affairs.Footnote 277 For example, the prosecution cites sources indicating that the Taliban had a practice of distributing ‘night letters’ to ‘induce compliance with social norms favored by the Taliban’,Footnote 278 and that one of these letters addressed to an Afghan woman stated: ‘We Taliban warn you to stop working otherwise we will take your life away. We will kill you in such a harsh way that no woman has so far been killed in that manner. This will be a good lesson for those women like you who are working. The money you receive is haram [prohibited under Islam] and coming from the infidels.’Footnote 279
49. Thus, it is clear that the deprivation of fundamental human rights was inflicted on women and girls because of the Taliban’s beliefs, attitudes, and perceptions regarding appropriate social behaviour for females.
50. This Chamber recognises that the definition of gender under Article 7(3) of the Rome Statute, in particular the phrase ‘within the context of society’ – even if interpreted to include societal perceptions and attitudes about what it means to be ‘male’ and ‘female’ – could be read as referring to perceptions and attitudes about the proper role and behaviour of males and females within the context of Afghan society. Notably, historians and social scientists who have written about Afghanistan have indicated that gender-discriminatory attitudes, beliefs, and perceptions were prevalent within Afghan society during the period under review here.Footnote 280
51. This Chamber notes, however, that even those sources acknowledge that such discriminatory beliefs were ‘largely attributed to the patriarchal social structure’ in Afghanistan, where ‘[m]en [we]re still largely in control of the means of production, religious educational institutions and decision-making bodies inside and outside … state [institutions], and other social and cultural institutions’.Footnote 281 This suggests that while these beliefs might have been shared by a segment of the population, they likely did not reflect all or even a majority of Afghans’ views. In fact, during debates surrounding the drafting of a new Afghan constitution in 2003 and 2004, ‘a number of women delegates … spoke against societal injustice and violation of human and women[’s] rights by the Islamic warriors’.Footnote 282
52. More importantly, even if these beliefs, attitudes, and perceptions had been prevalent within the context of Afghan society, as discussed above, if they resulted in conduct that constitutes a severe violation of victims’ fundamental rights under international law, it is legally irrelevant whether local laws, religion, or customs permit the behaviour that resulted in those violations.Footnote 283 Thus, the severe deprivation of fundamental rights of individuals who act contrary to prescribed gender roles, even if accepted or tolerated in a particular society, amounts to persecution on the grounds of gender.
On Intersecting Grounds of Gender and Political Opinion
53. As mentioned earlier, this Chamber recognises that groups may be targeted, or have different experiences of crimes, because of intersecting and inextricably linked identity factors. Thus, the Chamber will assess not only whether harms were inflicted on victims on the grounds of gender but also whether and how gender-based persecution intersected with other grounds of persecution, and the impact of persecution on the basis of these intersecting grounds on the targeted group.
54. The Prosecutor’s Request notes that ‘it appears that female politicians, public servants and students were also killed based on their political affiliation or beliefs’.Footnote 284 The Prosecutor’s allegations and supporting documents note, for instance, that the Taliban killed two female heads of a provincial Department of Women’s Affairs (DWA), one of whom was a ‘prominent politician who had for years been a leading advocate for the fair treatment of women’.Footnote 285 Although the prosecution uses this as an example of gender-based persecution, the Taliban appears to have targeted these women both because they acted contrary to the gender norms espoused by the Taliban and because of their political opinions and activities. In fact, as the Prosecutor’s Request makes clear, the second victim, who was Acting Head of the DWA, was killed on her way to work.Footnote 286 Moreover, other DWA staff members were also subject to threats.Footnote 287
55. Importantly, recognising the intersectional grounds animating the Taliban’s conduct makes clear both the enhanced vulnerability of the victims to the Taliban’s attacks and the aggravated harms flowing from their conduct. Indeed, the killings not only deprived the victims of their lives and the victims’ families of their loved ones, but also resulted in reduced advocacy for and availability of services and support for women and girls in their community. As the Prosecutor’s allegations and supporting sources show, ‘by targeting … two prominent female figures … the Taliban terrorised and effectively prevented women and girls from approaching an important social institution where they could seek protection and file complaints in efforts to improve the living conditions of Afghan women and girls’.Footnote 288
56. Thus, this Chamber finds that characterising the persecution against female politicians, public servants, and students as having been based on intersecting gender and political grounds more accurately captures the basis of the discrimination underlying this crime and the aggravated nature of the harms resulting from it.
Chapeau Elements
57. The Chamber finds that the persecution on intersecting gender and political grounds was committed as part of a widespread or systematic attack directed against a civilian population. It further finds that the perpetrators knew that such persecution was part of or intended the conduct to be part of a widespread or systematic attack directed against the civilian population.
Conclusion
58. Having considered the Prosecutor’s Request and the evidence adduced in support of it, the Chamber is satisfied that there is a reasonable basis to believe that the crime against humanity of persecution on intersecting gender and political grounds has been committed.
For These Reasons, the Chamber Hereby:
DECIDES to authorise an investigation into the situation in Afghanistan and, accordingly, APPROVES THE REQUEST;
ORDERS the Victims’ Participation and Reparations Section of the Registry to notify the present Decision to the victims who have made representations to the Chamber in relation to the situation in Afghanistan.
Judge Susana SáCouto
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