The International Criminal Court made waves last week with the release of its annual report on preliminary examinations, the first stage of the court considering to take on a new situation and opening a formal investigation. Many of the 10 situations undergoing preliminary examination are not new, but one in particular caught the attention of the world press: Afghanistan. A member of the court since 2003, there is ample evidence that serious crimes have been committed in the country. But the prospect of opening a formal investigation there also means that US forces and officials could come under scrutiny by the ICC, a development that could have major ramifications for the court.

Since the most recent conflict started in 2001, the war in Afghanistan has been marked with high civilian casualties and questionable tactics on all sides. The UN Assistance Mission in Afghanistan (UNAMA) estimates more than 19,000 civilians have been killed since they started tracking figures in 2009, often as a result of IEDs and other indiscriminate forms of violence as well as targeted attacks on civilian institutions such as the recent attack by armed gunmen at American University of Afghanistan that left 12 dead.

The highest casualties are the result if the Taliban and affiliated groups, but that does not mean Afghan and international forces are immune from attention by the court. In particular, the use of torture and other degrading treatment as part of “enhanced interrogation” techniques by US, coalition and Afghan forces opens the possibility that these parties could also find themselves before the ICC.

In this week’s report, the ICC details these three focuses. Although this is only in the preliminary exam stage and not a full investigation, the prosecutor’s office has found evidence of the following:

• Crimes Against Humanity and War Crimes by the Taliban and associated Haqqani Network, specifically for murder, imprisonment, persecution of political groups, persecution of women on the basis of their gender, the use of child soldiers, and systematic attacks on protected institutions such as schools, hospitals, mosques and humanitarian organizations

• War Crimes for torture and other ill treatment by Afghan forces, especially by the National Directorate of Security and the Afghan National Police

• War Crimes for torture and other ill treatment by the US military in Afghanistan and secret detention facilities in Poland, Romania and Lithuania run by the CIA

With the reporting concluding that a finding on admissibility is “imminent” that means members of all three of these groups could face further investigation by the court.

Implications of the Report

Understandably, the inclusion of American and other international forces is getting the most attention in news coverage. But it is also clear from the report that the Taliban and Afghan forces are far more likely to appear before the court than Western personnel.

The primary reason for this has nothing to do with geopolitics but is rather owing to the lack of interest or ability of Afghanistan’s national justice system to hold perpetrators accountable. Under the principle of “complementarity” the ICC only has jurisdiction over a case if the domestic authorities are “unable or unwilling” to investigate and prosecute those most responsible for serious crimes. If the relevant domestic system does genuinely pursue investigations, and when appropriate prosecutes, the ICC has no jurisdiction to continue with the matter further.

But in Afghanistan, impunity seems to be the default. Despite numerous reports by UNAMA, the Afghanistan Independent Human Rights Commission and a presidential fact-finding commission that torture is widespread in domestic detention facilities, the ICC has found only two prosecutions for torture. With an estimated 35 to 50 per cent of detainees subject to this abuse, the lack of prosecutions and accountability gives the court space to assert jurisdiction.

For US and other international forces the issue is more tricky. Even though the US is not a state party to the ICC, the court could still exercise jurisdiction since the alleged conduct took place in the territory of other state parties, namely Afghanistan, Poland, Romania and Lithuania. The very public debate in the US over the use of these techniques also adds weight to the allegations, as the use of torture became national policy for a period of time. Even though the number of people subject to this treatment and the time frame it generally occurred (2003-2004) is much more limited than the allegations facing the Taliban and Afghan forces, the high profile nature if the policy makes it harder for the US military and CIA to shirk off.

At the same time, the American debate on torture has led to far more investigation and inquiries into its use than seen with Afghan authorities. This could exempt the US under complementarity. But the ICC notes in its report that transparency of these proceedings is lacking. Furthermore, after President Obama took office, the government announced it would not prosecute anyone who was acting within the legal guidelines at the time – in other words, when the legal advice of the White House, Department of Defense and CIA said torture was legal. President Obama also announced it would not pursue charges against the high ranking government officials who authorized these policies and bear the most responsibility, the same people most vulnerable to an ICC investigation.

Thus, there is room for the US to step up and avoid charges before the ICC. But it will take a major change in how it approaches this part of its history.

A Sea Change in Political Will?

As Mark Kersten points out at the blog Justice In Conflict, the most likely outcome of this is the US will just ignore the court and refuse to cooperate. With yet another new administration coming into power and an apparently rejectionist one at that, there will likely be no appetite to publicly litigate the crimes of the Bush era again or have anything to do with the court. Whereas Obama expanded cooperation with the ICC (while never formally joining the court) it is not an institution in which theTrump administration is likely to find much value. Instead, the US will probably return to the openly hostile yet indifferent stance of the Bush administration.

With the recent departure from the court of several state parties, that stance may further undermine the ICC’s credibility. But an investigation into Afghanistan would also expand the geographic scope of the court’s current cases while addressing serious crimes in a persistent conflict zone.

The longstanding nature of the conflict in Afghanistan, where the country has seen little peace since the 1979 Soviet invasion, is exactly the type of situation where the court could make a difference. The crimes of the Taliban and other extremist groups, as well as the impunity enjoyed by government officials, need to be addressed if Afghanistan is ever to become stable and conflict-free. But to be effective justice would need to be dealt evenhandedly to all parties involved.

That does include the US. Understandably this leaves many Americans uncomfortable. But rather than see the report as an attack on the integrity of the US it should be seen as an opportunity. There’s still room for the US to deal with these issues on its own terms. Although it would require a level of political will we have yet to see, with a new administration coming into power, now might just be the best chance we have to change that.