- Carla Smith
International Law: War Crimes in Afghanistan
Updated: Feb 28, 2022
This Voices piece is written in collaboration with the Women In Law Society at LSE and explores the role of international law in prosecuting war crimes. Our student contributors have given their views on whether or not the West should prosecute the Taliban’s war crimes in Afghanistan, and the means available for them to do so.
The American withdrawal from Afghanistan last August, which they had militarily occupied since 2001, prompted renewed international attention on the war crimes committed by the Taliban. The militant Islamist organisation, which calls itself the Islamic Emirate of Afghanistan, entered the capital of Kabul on August 15th and overran the Afghan government, despite its agreement with the US (1). The Taliban have been notorious since their rise in the 1990s when they imposed their version of the Sharia (Islamic law) onto those in Afghanistan, which is seen as irreconcilable with modernity and women’s rights. They have since been joined by forces of Al-Qaida, the network of Sunni Islamists and jihadists. Public executions, the ban of women over 10 attending school and the compulsory wearing of the burqa have been making a return since August (2).
Now that the Taliban is back in power, it will be much harder for the international community to protect Afghan civilians from its violence. However, prosecuting the Taliban’s past war crimes, such as the killing of prisoners of war and the use of torture, can be a first step towards obtaining justice for the victims and their families. War crimes can usually be prosecuted in two separate ways: through domestic courts thanks to the principle of universal jurisdiction, or through international courts like the International Criminal Court (ICC) or International Court of Justice (ICJ). For example, war crimes committed by Myanmar against the Rohingya, a case has been filed with the ICJ and another has been filed within Argentina (3). So far, there has been minimal progress in prosecuting war crimes in Afghanistan. The Chief Prosecutor of the ICC Karim Khan declared last September his intention on investigating the crimes committed by the Taliban and ISIS, a process that has been delayed by the American sanctions (4) and Afghan deferrals (5).
In this piece, we have asked three students to contribute their opinions on the best way to prosecute Taliban war crimes. Sehaj supports a Western effort to prosecute through the ICC as she shows that domestic efforts in Afghanistan are lacking. Rachael assesses the pros and cons of prosecuting in an international court and suggests that not all members of the Taliban should be held responsible. Lastly, Hibah evaluates the differences of the present Taliban administration with that of the 1990s. She remarks that it would be controversial for the West to prosecute war crimes in Afghanistan when it is not being held accountable to those it committed itself.
Sehaj Nijjar, 1st Year, LLB Law
As of 16th June 2021, 24 health workers, humanitarians, human rights defenders and journalists had been targeted and assassinated by the Taliban since the beginning of peace talks in Doha 2020 (1). This is only one of many war crimes committed by the fundamentalist movement since the 1990s. Devastatingly, only one of these killings has been investigated, and nobody has been brought to justice. The International Criminal Court (ICC) has the power to exercise its jurisdiction over the four core international crimes listed under the Rome Statute: genocide, crimes against humanity, war crimes and the crime of aggression. Since Afghanistan deposited its instrument of accession to the Rome Statute on 10 February 2003, the ICC can investigate the alleged crimes committed on the territory of Afghanistan from 1 May 2003 onwards. The ICC began this investigation on 5th March 2020, until the Afghan national securities requested for the case to be deferred to them under Article 18 (2) of the Rome statutes - which allows States to request the deferral of cases from the ICC Prosecutor to the State. However, Prosecutor Karim A.A. Khan QC of the ICC released a statement in late September highlighting the “significant change in circumstances” regarding the fall of the internationally recognised Afghan government as the Taliban seized power (2).
From this statement, it is clear that the ICC believes “there is no longer the prospect of genuine and effective domestic investigations...within Afghanistan”. ICC trials during the early 2000s, convicting individuals who had significantly contributed to the war crimes in Congo, set a precedent for ensuring investigations into the members of the Taliban for their alleged crimes (3). Where there is not a stable authority in place to domestically take charge of the investigation, the ICC should step forward as it has done in the past. The difficulty that arises from this issue is whether the ICC will be successfully able to carry out the investigation given the current power the Taliban hold over Afghanistan. Acknowledging that the US has historically evaded liability for war crimes committed in Afghanistan, including their lack of cooperation with the ICC investigation, it would be significantly difficult for the ICC to be able to prosecute the Taliban without a great deal of resistance (4). Thus, for the ICC to successfully investigate and prosecute the Taliban, the West should aim to work with and through the ICC to deliver justice in alignment with the international war crimes committed. Nations like the US should not only hold themselves accountable for their actions but should also uphold the same principle of justice on a global level.
Rachael Mak, 1st Year, LLB Law
There is a need to first assess whether individual militants or the administration should be held responsible for the Taliban’s war crimes. Some may argue that most Taliban militants are fighting for beliefs they adhere to and therefore should be accountable for their actions. However, the Taliban has also put children on the front lines of Afghanistan’s armed conflicts, having been used as fighters and suicide bombers (1). These children often lack the knowledge to make the right choice for themselves and are likely to be coerced into fighting for the Taliban. Furthermore, holding individuals responsible may not be practically achievable due to the size of the military. Although militants are the ones that ultimately incited violence which led to deaths and casualties, holding the administration accountable may also provide greater closure for the family of the deceased.
The efficiency of prosecution in international courts, as opposed to domestic ones, should also be considered. Prosecuting war crimes in a specific state can increase the likelihood of justice being delivered swiftly. This can be explained by the prioritisation of war crime cases being reviewed as they often concern multiple families, children and stakeholders. International media pressure that focuses on one single country may also speed up the process for the case to be reviewed. By contrast, war crimes assessed at the International Criminal Court (ICC) are likely to take longer before a verdict can be reached, not least because the investigation process which consists of 6 steps (2). These investigations might not necessarily result in proceeding: out of 45 cases, only 14 resulted in complete proceeding and 9 were convicted since the court was established in 2002 (3). The length of the process may however enforce judicial transparency as this allows evidence to be scrutinised in depth.
War crimes in Afghanistan have been ongoing for years, as demonstrated by the violent and unstable political nature in the country which may date back to the 1970s, yet the Rome Statute that aims to investigate war crimes only entered into force in 2002 (4). It might thus not be possible to prosecute the Taliban administration who committed war crimes before 2002 under the Rome Statute as laws cannot be retrospective – meaning that the Taliban cannot be punished for war crimes they committed before the statute was created. Moreover, investigating the case at an international court could arguably be a landmark case – a case that future courts may reference due to its historical significance. The fact that the Rome Statute was accepted by 123 countries highlights the global condemnation of war crimes. Therefore, a global effort in prosecuting war crimes in Afghanistan through the ICC is necessary, rather than just a Western one.
Hibah Rizwan, 1st Year, BSc International Relations and History
When considering whether the Taliban should be prosecuted for its war crimes in Afghanistan, the debate arises regarding which version of the Taliban should be punished. The current iteration of the Taliban which took over Afghanistan in 2021 has attempted to differentiate itself from the one that ran the country prior to Bush’s War on Terror in the Middle East and present itself as a moderate and politically legitimate force. However, many of the repressive elements of their ideology such as the banning of female students from secondary schools (1) have remained identical to the previous regime. Therefore, despite Deputy Prime Minister Dominic Raab’s distinctions between the current Taliban and groups like ISIS-K2 (2), an ISIS affiliate created by disaffected Taliban in eastern Afghanistan, it appears that the perceived ‘new’ Taliban has not diverged far from the one that committed its infamous war crimes in the past nor those radical groups which have splintered off since.
Furthermore, to argue that the current Taliban should not be held responsible for its predecessor's war crimes suggests the existence of a new Taliban leadership, yet at present most of the Taliban-led government in Afghanistan is made up of prominent members from its most violent days. These include its original founding members such as Prime Minister Hassan Akhund (3). Julian Borger claims “their return to power embodies Afghanistan’s inability to escape the bloody shackles of its past" (4). There is truth to this as the men who now run Afghanistan played a hand in the war crimes committed by the Taliban (5), thus placing a level of responsibility upon the current Taliban to be held accountable for its war crimes.
The question of whether the West should prosecute these crimes remains. The war crimes the US and its NATO allies have committed in Afghanistan illustrate clearly why they should not be given this prerogative. We do not have to look far back for examples: in August 2021 a US drone strike killed 10 civilians and no one has been punished (6). Throughout the US’s intervention in Afghanistan, there have been multiple cases of torture and murder of civilians (7). Why, then, would the responsibility of punishing the war crimes of the Taliban be given to those who have done the same? Instead, the duty should be given to neutral states that played no role in the escalation of the conflict, to be handled through the international legal system. On that account, in the wake of thousands of unpunished deaths of Afghan civilians at the hands of the West (8), it would be controversial and likely cause intense backlash for them to be given the moral duty to prosecute the Taliban in Kabul today.
Carla's Sources (Introduction)
1. Who are the Taliban, BBC, published 18th August 2021, Link: https://www.bbc.co.uk/news/world-south-asia-11451718
2. Agreement for Bringing Peace to Afghanistan, published 29th February 2020, Link: https://www.state.gov/wp-content/uploads/2020/02/Agreement-For-Bringing-Peace-to-Afghanistan-02.29.20.pdf
3. Will cases brought against Myanmar deliver justice to Rohingya?, Mia Swart, Aljazeera, published 19th November 2019, Link: https://www.aljazeera.com/news/2019/11/19/will-cases-brought-against-myanmar-deliver-justice-to-rohingya/
4. ICC prosecutor seeks to resume Afghanistan war crimes probe, ABC News, Mike Corder, published 27th September 2021, Link: https://abcnews.go.com/International/wireStory/prosecutor-seeks-resume-icc-probe-afghanistan-80255045
5. Information for Victims : Situation in the Islamic Republic of Afghanistan, International Criminal Court, Link : https://www.icc-cpi.int/pages/victims-info-page.aspx?for=%27afghanistan%27
1. Afghanistan: Deliberate killing of civilians must be investigated following deadly attacks, [no name], Amnesty International, published on 16 June 2021, Link : https://www.amnesty.org/en/latest/news/2021/06/afghanistan-deliberate-killing-of-civilians-must-be-investigated-following-deadly-attacks/
2. War crimes prosecutor would not focus on U.S. forces in new Afghanistan probe, Anthony Deutsch and Stephanie van den Berg, Reuters, published on 27 September 2021, Link : https://www.reuters.com/world/asia-pacific/icc-prosecutor-seeks-authorisation-resume-afghanistan-war-crimes-investigation-2021-09-27/
3. Situation in the Democratic Republic of Congo, International Criminal Court, Case Information Sheet, updated in July 2021.
4. How US evades responsibility for war crimes in Afghanistan, Yu Ning, Global Times, published on 27 September 2021, Link : https://www.globaltimes.cn/page/202109/1235240.shtml
1. This is our opportunity to end the Taliban's use of child soldiers, Jo Becker, Human Rights Watch, published 20 September 2021, Link: https://www.hrw.org/news/2021/09/20/our-opportunity-end-talibans-use-child-soldiers
2. How the Court works, International Criminal Court, Link : https://www.icc-cpi.int/about/how-the-court-works
3. The Effectiveness of the International Criminal Court: Challenges and Pathways for Prosecuting Human Rights Violations, Sarah J. Goodman, Inquiries Journal, published 2020, Link: http://www.inquiriesjournal.com/articles/1806/the-effectiveness-of-the-international-criminal-court-challenges-and-pathways-for-prosecuting-human-rights-violations
4. The role of the International Criminal Court, Claire Felter, Council on Foreign Relations, published 23rd February 2021, Link: https://www.cfr.org/backgrounder/role-international-criminal-court
1. Taliban ban girls from secondary education in Afghanistan, Emma Graham Harrison, The Guardian, published 17th September 202, Link: https://www.theguardian.com/world/2021/sep/17/taliban-ban-girls-from-secondary-education-in-afghanistan
2. I believe the Taliban have changed, Boris Johnson tells MPs, Matt Danthon, The Times, published 6th September 2021, Link: https://www.thetimes.co.uk/article/more-than-300-afghans-eligible-for-uk-resettlement-are-out-of-contact-w08wtnrfr
3. Afghanistan: Who's who in the Taliban leadership, BBC, published 7th September 2021, Link: https://www.bbc.co.uk/news/world-asia-58235639
4. Taliban’s Abdul Ghani Baradar is undisputed victor of a 20-year war, Julia Borger, The Guardian, published 15th August 2021, Link: https://www.theguardian.com/world/2021/aug/15/talibans-abdul-ghani-baradar-is-undisputed-victor-of-a-20-year-war
5. Who are the Taliban 2.0?", Stephanie Findlay, Financial Times, published 16th August 2021, Link: https://www.ft.com/content/25bb6ed9-fdef-451f-a7a7-4a7b9e4ab852
6. How US evades responsibility for war crimes in Afghanistan", Yu Ning, Global Times, published on 27 September 2021, Link: https://www.globaltimes.cn/page/202109/1235240.shtml
8. 40% of all civilian casualties from airstrikes in Afghanistan – almost 1,600 – in the last five years were children, Releif Web, OCHA services, published 6th May 2021, Link: https://reliefweb.int/report/afghanistan/40-all-civilian-casualties-airstrikes-afghanistan-almost-1600-last-five-years