The Afghan government's clumsy fight against the ICC

People carry the coffin of an Afghan female judge gunned down in Kabul. EPA

On May 9, Afghanistan’s Foreign Minister, Mohammed Haneef Atmar, was finalising his remarks at the tail end of a visit to The Hague, where he was meeting with the International Criminal Court’s outgoing chief prosecutor, Fatou Bensouda, to discuss an investigation opened by the ICC into war crimes and crimes against humanity in Afghanistan.

"We have made encouraging progress in charting the way forward to ensure that no crime goes unpunished," Mr Atmar said in his official statement, given after the meeting.

The statement went out just as one of the most egregious war crimes to happen in Afghanistan this year was taking place. A massive car bomb went off outside a girls’ school in the West Kabul neighbourhood of Dashte Barchi, claiming 68 young lives and maiming 165 others.

The perpetrators remain unknown; the Afghan government blames the Taliban, and the Taliban denies their claims.

The attack on the school was, on the face of things, a tragic illustration of the urgency of Mr Atmar’s words. In reality, it was a tragic illustration of their insincerity. Mr Atmar was not in The Hague to assist the ICC’s investigation. Rather, he was there to try to get the ICC to drop it.

The ICC investigation of Afghanistan’s war poses an enormous problem for the government, which invited the prospect of such an investigation when it signed the Court’s founding document, the Rome Statute, in 2003. At the time, the transitional government under then-president Hamid Karzai only saw the upside. That government was birthed through a grand international process underwritten by international liberal ideals. Joining the ICC was a firm break from the Taliban era, and a mark of the new Afghanistan taking its place among the world’s nations. It did not anticipate that its own people might ever do anything to put themselves in legal jeopardy, or that it would embroil itself in an international legal mess.

But that is rarely how young governments in conflict states work. And overlooking the faults of such governments is not how the ICC works.

In fact, since the Karzai administration all the way through to today’s government under President Ashraf Ghani, Kabul’s approach has betrayed a consistent lack of understanding of not only legal logic, but the very logic of justice.

In the wake of the US invasion, the Afghan Independent Human Rights Commission spent years putting together an 800-page conflict mapping report, commissioned by Mr Karzai, documenting war crimes committed between 1978 and 2001. When the Karzai administration saw that those accused in the report included numerous ex-militia commanders since appointed to government posts (and appeared to be somehow surprised by this), it cancelled publication.

Mr Ghani promised in his presidential campaign to release the report. He has never done so. He has instead promoted a “Spanish model” of reconciliation, in which all war crimes committed before 2001 are forgotten and forgiven.

The ICC’s jurisdiction in Afghanistan commences in 2003, however, and forgiving and forgetting is not written into the Rome Statute. The Court’s Office of the Prosecutor (OTP) can be authorised by the Court to open an investigation into war crimes that occur in a member state’s territory – in this case, Afghanistan’s – when that state proves unwilling or unable to prosecute these crimes itself. And, importantly, once the investigation is opened, it is not limited to a particular party to a conflict. It covers all sides.

After years of preliminary work and a legal battle within the ICC itself, the OTP formally opened such an investigation into Afghanistan this March, and it has named parties including the Taliban and other terrorist groups, but also the Afghan military, and its allies the US military and the CIA.

The Afghan government has fought the prosecutor every step of the way, using ham-fisted strategies and incoherent, contradictory arguments.

Five years ago, when the OTP was trying to decide whether or not to request the Court’s authorisation for the investigation, the Afghan government argued that doing so could interfere with Kabul’s efforts to make peace with Gulbuddin Hekmatyar, the leader of an Afghan terrorist group, even though the OTP did not indicate any plans to investigate Hekmatyar or his organisation. It also argued that Afghanistan’s judiciary was willing and able to prosecute war crimes at home, rendering any ICC intervention unnecessary. But a peace deal the Afghan government would eventually sign with Mr Hekmatyar that year included a blanket amnesty for any war crimes he may have committed, greatly diminishing any confidence in Kabul’s hunger for justice.

At the end of 2019, when the ICC’s Appeals Chamber was deciding whether or not to finally authorise the investigation, the Afghan government repeated the justice-prevents-peace strategy, this time applying the logic to the Taliban peace talks. It argued that an ICC intervention could drive the Taliban away from the talks, while also insisting that it is able and willing to prosecute Taliban war crimes and, therefore, the Court doesn’t have to. It failed to mention how these Afghan-led prosecutions would not jeopardise the peace talks.

The government also argued, paradoxically, that while its judiciary is able to prosecute war crimes, now is not the right time for it to do so, because the country’s security situation is so poor that judges and prosecutors are frequently targeted by insurgents.

Moreover, as evidence of its seriousness, the Afghan government cited 180 cases it intends to investigate. Not a single one included the Afghan military as a perpetrator.

Mr Atmar has instead tried to turn the entire ICC investigation as its own weapon in its war against the Taliban. During his visit to The Hague, he issued a direct threat to the group, warning them that they could be put on trial at the ICC if they refused to make peace, even as he tried to ensure that such a trial never happens and argued that pursuing it would only make the Taliban more violent.

These paradoxes shed light on a flawed logic, which appears predicated on a perceived conflict between justice and peace. And it is no wonder. Afghanistan’s multitude wars have, in a way, been tools for justice – restoring the country by achieving retribution for past wrongs, whether they were committed by the Soviets, the Americans, various ethnic factions or – most acutely in the eyes of the government – the Taliban. The problem with this approach is that when war becomes the only tool for justice, agreeing to end a war means ending the pursuit of justice. Peace, in this line of thinking, is an agreement to ignore injustice, to forget and to move on.

But as 40 years of war in Afghanistan have shown, people do not move on. And war is an imperfect tool for justice. It only rights some wrongs while creating new ones. If Afghanistan is to see a day when war criminals no longer walk the streets with impunity, it will need to do it through real investigations and transparent, scrupulous trials that put everyone under the microscope. That will not prevent peace; it is a necessary part of creating peace.

Sulaiman Hakemy is opinion editor at The National