10 Sep The ICC’s Preliminary Investigation in Afghanistan (Updated)
I don’t have any deeper insight into the situation than Ken, but there certainly has been pressure on the Prosecutor to investigate Afghanistan for some time — both because it’s not in Africa and because of US/NATO involvement in the armed conflict there. It is important to stress, though, that the OTP has not formally opened an investigation; it is simply collecting information in order to determine whether a formal investigation is warranted — and has been since 2008. Moreover, absent a referral from a State Party, the Pre-Trial Chamber would have to authorize the OTP to open a formal investigation.
In terms of substantive crimes, I agree with Ken that it is very unlikely the OTP would prosecute attacks that caused excessive collateral damage. As I have explained in an essay that focuses on war crimes involving environmental damage but is equally applicable to civilian damage — it’s the same Article in the Rome Statute, Art. 8(2)(b)(iv) — a military commander is only responsible for an objectively excessive attack if he subjectively concluded, prior to the attack, that it would be clearly excessive. (“In the knowledge that…”) That is very unlikely, to say the least.
Note also that the other violations of IHL that Ken mentions — such as the failure to warn or the failure to distinguish in and of itself — are not war crimes under the Rome Statute.
What, then, would the OTP prosecute? I imagine it would focus on the Taliban’s intentional crimes against civilians, which have been very well documented by those terrorist-loving NGOs Human Rights Watch and Amnesty International; similar crimes committed by Afghani government officials who used to be warlords; and — perhaps — the systematic torture committed by US and NATO soldiers at Bagram and elsewhere in Afghanistan. Prosecutions in the final category would obviously be very politically charged, but they would also be richly deserved.
UPDATE: As I was researching my response to New Stream Dream’s questions, I realized that Afghanistan has a “bilateral immunity” agreement with the US. If that agreement is valid, Article 98 of the Rome Statute would recognize Afghanistan’s right to not turn a US citizen over to the ICC. Whether such agreements are valid, however, remains to be seen; many States — 24 of the 29 NATO countries, for example, including the UK, France, and Germany — believe that they are inconsistent with the object and purpose of the Rome Statute, at least insofar as they post-date a State’s ratification of the Rome Statute. The issue is particularly difficult in the case of Afghanistan: although its Article 98 agreement was signed prior to ratification — agreement signed in September 2002; Rome Statute ratified in February 2003 — that agreement is an executive agreement, not a ratified treaty. I am not an expert in such things, but I would think that the ICC would be somewhat less likely to recognize the former than the latter. Readers?
UPDATE 2: Dapo Akande has a must-read post on US/NATO targeting of Afghan drug traffickers at EJIL: Talk!.