By Janet Sankale
The Prosecutor will have to wait longer for the International Criminal Court’s ruling on his request to resume investigations in Afghanistan as the authorities representing that country are properly identified.
The court’s Pre-Trial Chamber II asked the Secretary-General of the United Nations (UN) and the Bureau of the Assembly of States Parties (ASP) to identify the authorities currently representing the Islamic Republic of Afghanistan, saying it needs the information by November 8, 2021 to help it make an informed decision in the matter of the Prosecutor’s request.
The chamber, composed of Judge Rosario Salvatore Aitala (presiding), Judge Antoine Kesia-Mbe Mindua, and Judge Tomoko Akane, explained why the UN and the ASP were the right entities to undertake the task: “Because of their respective institutional mandates, the entities suitable to provide this type of information at this stage are (i) the Secretary-General of the United Nations, as the depository of the original of the Statute and of instruments of ratification, acceptance, approval or accession to it pursuant to articles 126 and 128 of the Statute, and (ii) the Bureau of the Assembly of States Parties, the court’s governing body, to both of which Afghanistan is, and remains, a party.”
The judges noted the importance of properly identifying the authorities in Afghanistan.
“Contrary to what is stated by the Prosecutor, the request cannot therefore be legally adjudicated without addressing the ‘question of which entity actually constitutes the state authorities of Afghanistan since August 15, 2021’; rather, this question is central to the triggering of the procedure under Article 18(2) of the Statute,” the judges said in their ruling dated October 8, 2021.
Article 18(2), on preliminary rulings regarding admissibility, states: “Within one month of receipt of that notification, a state may inform the court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in Article 5 and which relate to the information provided in the notification to states. At the request of that state, the Prosecutor shall defer to the state’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorise the investigation.”
In his application dated September 27, 2021, Prosecutor Karim Khan had outlined the developments in Afghanistan that had led to his request to be allowed to resume investigations with a special focus on the Taliban and the Islamic State, despite the existence of a deferral request by the Afghanistan government, which had wanted to take over the cases.
“… from May 4, 2021, Taliban forces opposed to the government of President Ghani had commenced a new offensive in provinces across Afghanistan. By August 6, 2021, they had seized several provincial capitals, and by August 15, 2021, Taliban forces had entered the national capital city, Kabul. On the same day, President Ashraf Ghani left Afghanistan. By the following day, at an emergency meeting of the UN Security Council on August 16, 2021, member states referred to the “disintegrat [ion]” of the “leadership of the central government” in Afghanistan, and the “de facto control” of the Taliban over much of the territory,” he said.
In its response, the chamber noted the Prosecutor’s concerns that past agreements with the government of Afghanistan might not be respected.
“The Prosecutor states that the events having taken place on the territory of Afghanistan as of August 15, 2021 ‘may constitute an unconstitutional transition of power’, as a consequence of which there would ‘be no basis to presume any continuity of policies’ with those examined by the Office of the Prosecutor when assessing the deferral request.”
However, it insisted on proper and legal identification of concerned authorities before considering the request.
“The chamber notes that statements or assumptions of political nature have no place in a court of law. Crucially, issues relating to a state’s representation, or to the transition of power within a given state, are complex matters of international and constitutional law, as such not suitable to be addressed, or trivialised, by way of general, sweeping and unsubstantiated assertions. It stresses that it is not within the Prosecutor’s, the chamber’s or any organ of the court’s purview to determine any of those matters, especially in a scenario where, for several reasons including the fast pace of relevant developments, and the short time elapsed since they materialised, there is still a large margin of uncertainty as to the legal implications of those events, including for the purposes of international law and international relations,” it said.
However, mindful of the fact that the proceedings might take time and, therefore, impact the evidence, the court reminded the Prosecutor of Article 18(6), which states, in part, that, “…the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence…” and invited him “…to exercise the utmost diligence in resorting to it”.
On March 5, 2020, the Appeals Chamber allowed the then Prosecutor, Fatou Bensouda, to investigate “alleged crimes committed on the territory of Afghanistan in the period since May 1, 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 to the Rome Statute since July 1, 2002”.
However, on March 26, 2020, the government of Afghanistan requested a deferral of the ICC investigation to allow it to take over the case under the principle of complementarity. This meant that state of Afghanistan, rather than the International Criminal Court, would have priority in proceeding with cases within its jurisdiction. The ICC only comes in if a state is unable or unwilling to act on crimes against humanity, war crimes, or genocide.
The original ruling allowed the Prosecutor to investigate all crimes committed in Afghanistan, including by the Taliban, the Afghan national security forces, and United States military and Central Intelligence Agency personnel. However, Khan announced his intention to narrow his investigation to focus on the Taliban and the Islamic state while “deprioritising” questions about the actions of other actors.
After the fall of the government of President Ghani and the ascension of the Taliban in Kabul, the representation of Afghanistan at the United Nations is in abeyance. On September 20, 2021, UN Secretary-General Antonio Guterres received a letter from the “Islamic Emirate of Afghanistan” – which the Taliban declared after taking control of the capital – signed by Amir Khan Muttaqi, who goes by the title “Minister of Foreign Affairs”.
The letter included a formal request by the Taliban to participate in the 76th session of the UN General Assembly (UNGA), which ran between September 14 and 27, 2021. It said Suhail Shaheen, the Taliban’s Doha-based spokesman, had been nominated as the new ambassador to the UN. It dismissed Afghanistan’s current accredited ambassador, Ghulam Isaczai.
The question of who speaks for Afghanistan will be decided by the UNGA’s nine-member credentials committee, whose members are the United States, Russia, China, Bahamas, Bhutan, Chile, Namibia, Sierra Leone, and Sweden. The committee will assess the claim, make a recommendation, and send it back to the General Assembly, which will debate, and then accept or reject it.
When the Taliban ruled from 1996 to 2001, the UN refused to recognise the group’s government and instead gave Afghanistan’s seat to the previous government of President Burhanuddin Rabbani, who was later killed by a suicide bomber in 2011.