The OTP’s Remarkable Slow-Walking of the Afghanistan Examination

by Kevin Jon Heller

The Office of the Prosecutor (OTP) at the ICC just released its 2013 Report on Preliminary Examination Activities. There is much to chew over in the report, but what is most striking is the OTP’s slow-walking of its preliminary examination into crimes committed in Afghanistan.

The OTP divides preliminary examinations into four phases: (1) initial assessment, which filters out requests for investigation over which the ICC cannot have jurisdiction; (2) jurisdiction, which asks “whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court”; (3) admissibility, which focuses on gravity and complementarity; and (4) interests of justice, whether the OTP should decline to proceed despite jurisdiction and admissibility.

The OTP opened its investigation into the situation in Afghanistan in January 2007. Yet only now – nearly seven years later — has the OTP concluded that there is a reasonable basis to believe that crimes were committed there. And what are those crimes? Here is a snippet from the report:

23. Killings: According to the United Nations Assistance Mission in Afghanistan (“UNAMA”), over 14,300 civilians have been killed in the conflict in Afghanistan in the period between January 2007 and June 2013. Members of anti-government armed groups were responsible for at least 9,778 civilian deaths, while the pro-government forces were responsible for at least 3,210 civilian deaths. A number of reported killings remain unattributed.

24. According to UNAMA, more civilians were killed by members of anti- government armed groups in the first half of 2013 than in 2012. Members of the Taliban and affiliated armed groups are allegedly responsible for deliberately killing specific categories of civilians perceived to support the Afghan government and/or foreign entities present in Afghanistan. These categories of civilians, identified as such in the Taliban Code of Conduct (Layha) and in public statements issued by the Taliban leadership, include former police and military personnel, private security contractors, construction workers, interpreters, truck drivers, UN personnel, NGO employees, journalists, doctors, health workers, teachers, students, tribal and religious elders, as well as high profile individuals such as members of parliament, governors and mullahs, district governors, provincial council members, government employees at all levels, and individuals who joined the Afghanistan Peace and Reintegration Program and their relatives. The UNAMA 2013 mid-year report, in particular, indicated a pattern of targeted killings of mullahs who were mainly attacked while performing funeral ceremonies for members of Afghan government forces.

You can see why it took the OTP nearly seven years to determine (para. 35) “that there is a reasonable basis to believe that crimes within the Court’s jurisdiction have been committed within the situation of Afghanistan.” The crimes are so minor and so isolated that they could only be uncovered by years of diligent investigation.

The OTP obviously could have moved to Phase 3 — admissibility — years ago. So why didn’t it — especially given the pressing need for a non-African investigation? (And note that two additional African preliminary examinations, Guinea and Nigeria, are already at the admissibility stage, even though the Guinea examination was opened in 2009 and the Nigeria examination was opened at the end of 2010.) There is only one plausible answer: a desire to avoid angering the West, which has been militarily involved in Afghanistan for more than a decade. Although there is no question anti-government forces are responsible for the bulk of the crimes in Afghanistan, there is also no question that crimes have been committed by government forces and by ISAF, as well — which includes, of course, American soldiers.

Not that you would know it from the report. Despite the numbers, the OTP can’t bring itself to definitively conclude that any crimes have been committed by Afghan or ISAF forces. With regard to the 3,210 civilian deaths identified by UNAMA, for example, it simply says this:

41. Alleged war crimes committed by members of pro-government forces are comparatively more limited in scope, while there is no reasonable basis to believe that these forces have committed crimes against humanity in Afghanistan.

Similarly, with regard to allegations of torture by ISAF forces, this is the OTP’s conclusion:

51. It has been alleged that, between 2002 and 2006, some of the detainees captured in Afghanistan were subjected to interrogation techniques which may constitute torture or inhumane treatment. It is alleged that such interrogation techniques were applied in combination, either simultaneously, or consecutively.

52. The Office continues to seek information to determine whether there is any reasonable basis to believe any such alleged acts, which could amount to torture or humiliating and degrading treatment, may have been committed as part of a policy.

Remember, this category of crimes includes the US’s “enhanced interrogation” regime at Bagram Air Force Base. The OTP is thus less willing to draw firm conclusions about torture in Afghanistan than the US government itself.

In any case, the OTP has finally concluded that crimes have been committed in Afghanistan and advanced its preliminary examination to the admissibility phase. Lest there be any doubt that the OTP is doing everything it can to avoid opening a formal investigation in Afghanistan, though, the report tips its hand about Phase 3:

56. In this respect, the Office will examine the existence and genuineness of relevant national proceedings, taking into consideration the Office’s policy to focus on those most responsible for the most serious crimes. The Office notes that in relation to certain of the alleged crimes mentioned above, there is indication of national activity to address accountability.

That would come as a surprise to the NGOs who have been monitoring Afghanistan. Here, for example, is what Human Rights Watch says in a recent press release calling for the OTP to open a formal investigation:

Afghan government efforts at accountability, especially concerning its own forces, have achieved little, Human Rights Watch said. The government’s Action Plan for Peace, Reconciliation and Justice, issued in 2005, has not been carried out. President Hamid Karzai, with the backing of the United States and other governments, suppressed the release of the sole major effort to follow the Action Plan, the human rights commission’s 800-page report mapping serious abuses from 1978 to 2001.

In 2007, a coalition of powerful warlords and their supporters in parliament passed the National Stability and Reconciliation Law, which granted effective amnesty to people responsible for large-scale human rights abuses committed before 2001. The upcoming withdrawal of international combat forces from Afghanistan heralds a broader disengagement by the international community that may dissipate the little remaining international pressure to promote accountability for serious abuses, Human Rights Watch said.

The urgent need for accountability is evident in the campaign ahead of the presidential election in April 2014. Several candidates for president and vice president have been implicated in serious rights abuses. Afghanistan’s constitutional prohibition on convicted criminals running for president is of little effect when no major commanders have been convicted for any of the massive abuses committed in the country during the past four decades.

If the OTP stays true to form, we should know whether the Afghanistan government is addressing crimes committed by anti- and pro-government forces by 2020 at the latest.

http://opiniojuris.org/2013/12/01/otps-remarkable-slow-walking-afghanistan-examination/

3 Responses

  1. Kevin: yes, there are a large number of persons who are beyond reasonable doubt reasonably accused of crimes against humanity (such as secret detention as part of President GW Bush’s admitted “program” of “secret detnetion” (which was both widespread and systematic — see http://ssrn.com/abstract=1989099 ) and tough interrogation tactics that are violations of the laws of war (which admittedly included waterboarding [which we know is torture, e.g., 29 U.S. cases and 7 U.S. Dep't of State Country Reports, 2 int'l court decisions, etc.], the cold-cell [which we know is torture], etc. (see id.).  Some of these international crimes occurred in Afghanistan as part of the “program” that Bush admitted to in Oct. 2006, in his book, etc.   and do not forget John Yoo’s book, Cheney’s book and books, writings, and statements (like that of Condi Rice admitting that she passed along Bush authorizations for what we know is torture, etc.), etc. (see id. and Paust, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror (Cambridge Univ. Press 2007) and so many other books and law review articles!!!!).
    Time for the ICC to end impunity!

  2. Great find.  Could this be an example of opaque prioritization?   See my blog at http://intllaw.info/?p=547

  3. For some useful examples,
    See, e.g., George W. Bush, Decision Points 170 (2010) (Bush admitted authorizing waterboarding, which is decidedly torture); Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals 150 (noting an early 2002 meeting of Yoo, Gonzales, Addington, Flanigan, and Haynes discussing “what sorts of pain” to inflict), 185 (noting conflicts between Addington and Bellinger), 198-99 (noting that Addington, Gonzales, Haynes, Goldsmith, and others had flown to Guantanamo in September 2002 to discuss and observe use of patently unlawful SERE [Survival Evasion Resistance and Escape] tactics on detainees who were still held in secret detention or forced disappearance), 304, 307, 311-2 (noting the facilitating role of Gonzales) (2008); Jose Rodriguez, Hard Measures (2012) (admissions regarding waterboarding and other coercive tactics by former Deputy Director of Operations (Nov. 16 – Dec. 2004) and Director, National Clandestine Service (Dec. 2004 – Nov. 30, 2007), CIA); John Yoo, War By Other Means ix, 35, 39-40, 43, 171-72, 187, 190-92, 200, 231 (2006); Jordan J. Paust, The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions, 43 Valparaiso U. L. Rev. 1535, 1544-45, 1559-69 (2009) (also noting certain facilitating and abetting roles of Cheney, Addington, Gonzales, Rice, Rumsfeld, Tenet, Ashcroft, Yoo, Bybee, Haynes, Bradbury, Rizzo, Feith, Philbin, Flanigan, Goldsmith, and others) [hereinafter Paust, Absolute Prohibition]; Report, Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, Dec. 20, 2008 [hereinafter Senate Comm. Report], available at http://armed-services.senate.gov/Publications/EXEC%20SUMMARY-CONCLUSIONS_For%20Release_12%20December%202008.pdf; Majority Staff Report, House Committee on the Judiciary, Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush, Jan. 13, 2009, at 110-46 (also noting: “in Secretary Powell’s view, Mr. Bush was ‘complicit’ in those abuses.” Id. at 136), available at http://judiciary.house.gov/hearings/printers/110th/IPres090113.pdf; Julian E. Barnes, CIA Can Still Get Tough on Detainees, L.A. Times, Sept. 8, 2006, at A1; John Donnelly & Rick Klein, Bush Admits to CIA Jails; Top Suspects Are Relocated, Boston Globe, Sept. 7, 2006, at A1; Dan Eggen, Cheney Defends “Dunk in the Water” Remark, Wash. Post, Oct. 28, 2006, at A2; Ken Herman, Bush Confirms Secret Prisons, Denies Torture, Atlanta J.-Const., Sept. 7, 2006, at 1A (adding that the CIA secret detention program “had held about 100 detainees”); Dana Priest, CIA Holds Terror Suspects in Secret Prisons, Wash. Post, Nov. 2, 2005, at A1; Mark Silva, et al., Bush Confirms Use of CIA Secret Prisons,Chicago Trib., Sept. 7, 2006, at 1; R. Jeffrey Smith, Bush Says in Memoir He Approved Waterboarding, Wash. Post, Nov. 4, 2010, at A2 (also noting that Cheney had also said that he “‘was a big supporter of waterboarding’”); Bush Unrepentant, Daily News (New Zealand), June 4, 2010, at 10; Jonathan Karl Hosts ABC’s This Week, Feb. 14, 2010, 2010 WLNR 3128836 (Cheney: “I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques”); Marlise Simons, Spanish Court Weighs Criminal Inquiry on Torture for 6 Bush-Era Officials, N.Y. Times, Mar. 29, 2009, at A6 (possible indictments of Gonzales, Yoo, Addington, Feith, Bybee, and Haynes); Ari Shapiro, remarks, NPR (May 20, 2009), available at 2009 WLNR 9628215 (Gonzales “signed off” several times on the use of a number of harsh tactics several months prior to the August 2001 Bybee torture memo); UN Torture Investigator Calls on Obama to Charge Bush for Guantanamo Abuses, JURIST, Jan. 21, 2009, available at http://jurist.law.pitt.edu/paperchase/2009/01/un-torture-investigator-calls-on-obama.php; Torture Timeline, Appendix, infra; infra notes 2, 15.
     
    John Yoo wrote that he had also flown with other lawyers to Guantanamo Bay, Cuba in early January 2002. See Yoo, supra, at 18, 38-39, 44. Those lawyers knew that persons transferred to Guantanamo were held in secret detention because their names were not released. Such conduct constitutes a form of forced disappearance, a crime against humanity that during an armed conflict is also a war crime. See, e.g., Paust, Absolute Prohibition, supra, at 1539 & n.21.

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