Position Statement on the Decision of the ICC to resume investigation in Afghanistan

SAHR welcomes the Decision by the International Criminal Court (Court) authorising the Prosecution to resume its investigation into Afghanistan.

The Decision was made in response to inability and unwillingness of the State of Afghanistan to pursue the Deferral Request submitted by the Ghani administration on 26 March 2020, owing in part to the fall of Afghanistan to the Taliban in August 2021.

We welcome this Decision as the Taliban, operating as the defacto authorities of Afghanistan under the banner of the Islamic Emirate, will not be able to investigate and/or prosecute the concerning crimes. This is evident in their policy towards convicted prisoners who were released in the thousands, and, given a general unqualified amnesty. Further, the justice system of the former regime has collapsed and what remains of it under the Taliban is under reform, understaffed, under-resourced, and, largely undefined. It is unclear if international crimes under the Rome Statute which were largely adopted in the Afghan Penal Code 2017 will remain law. Further, police, prosecutors, judges and victims' advocates who were involved in relevant investigations and prosecutions have fled. Others have been disappeared, killed, dismissed or integrated into a new system that has been vaguely defined, even under Islamic law.

Between 2019 to 2021, Afghan advocates in coalition with Afghan Human Rights Organisations submitted representations which included declarations from survivors demanding for the Court to authorise and subsequently resume investigations into Afghanistan. Those demands were voiced in all possible forums in the months leading up to the fall of Afghanistan, and after.

It was hoped, at the time, that a decision to resume investigation would at least mitigate or prevent atrocities as the Taliban consolidated its hold over the country.

Over the last year, thousands have been exiled, displaced, disappeared, attacked in targeted schemes and no part of the population has been spared. Broad segments of the population who had served as journalists, civil society leaders, human rights lawyers, educators, civil servants, musicians, prosecutors, judges, defence lawyers, translators - have been targeted.

Many of the attacks were also motivated by gender discrimination and have risen to the level of gender persecution.

The erasure of women and specific groups has been central to the Taliban and ISKP's military campaigns and their political identity. As such, whilst we welcome the Court's decision, we also feel the need to re-emphasise the importance of intersectional and gender analysis in the investigation of all crimes, taking into account intersectional discrimination which have motivated the targeting of some groups over others, including gender persecution against women, atrocities being committed against the Hazaras, Hindus, Sikhs and Panjsheri people, and, notably (and not forgetting) the sexual exploitation of young boys.

We are concerned that owing in part to the exile, persecution and censorship of civil society and victims, that the historical, social, gender, cultural, political and religious context which explains the crimes will not be adequately captured. We are keen to understand the Court's policy and mechanism of consultation with civil society and victims inside and outside the country, to ensure the intersectional and gendered aspects are thoroughly considered, whilst safeguarding the physical and psychological safety and well-being of everyone concerned.

At a time when the voices of Afghans have been censored and silenced, the investigation has become an important forum for acknowledgement and accountability. In the past, Afghan Human Rights Organisations and other parties had submitted recommendations to the Prosecution on strategies to increase the efficacy and appropriateness of its engagement with civil society and victims. We noted the Court's observations on the same in this Decision and recommend the Prosecution and other relevant offices of the ICC to review its engagement policy, moving forward, so that the gender and intersectional aspects of crimes which have been committed will be realised.

We thank our colleagues from the Coalition of Afghan Legal Experts for Human Rights (CALE). CALE is a platform established in September 2021 by SAHR, to bring together judges, prosecutors, human rights defenders and lawyers to exchange perspectives on the barriers and opportunities for women’s access to justice in Afghanistan.