Written by Mehdi J. Hakimi*
Following the Taliban’s announcement of their annual spring offensive, violence has ratcheted up across Afghanistan. According to the UN Assistance Mission in Afghanistan (UNAMA), the Afghan conflict resulted in more than 10,000 civilian casualties in 2017 alone. The mounting atrocities in Afghanistan have finally prompted the International Criminal Court (“ICC” or the “Court”) to consider launching a formal investigation.
On November 20, 2017, Fatou Bensouda, the chief prosecutor of the ICC, requested judicial authorization to commence a formal investigation into alleged war crimes and crimes against humanity committed in Afghanistan since May 1, 2003. The 181-page request (not including annexes) was submitted by Bensouda’s Office of the Prosecutor (OTP) to a three-judge panel in the ICC’s Pre-Trial Chamber (PTC). In its request, the OTP sought authorization to investigate alleged crimes committed by the Taliban and their affiliates, the Afghan National Security Forces (ANSF), and the U.S. military and the CIA. This essay surveys the OTP’s charges against these actors and provides preliminary reflections on the task before the Court.
The Taliban and Haqqani Network
The OTP attributes the bulk of the atrocities to the Taliban and their affiliated Haqqani Network, alleging that these two groups have committed the following crimes against humanity: murder; imprisonment or other severe deprivation of physical liberty; and persecution against any identifiable group or collectivity on political and gender grounds. In addition, both groups are alleged to have committed the following war crimes: murder; intentionally directing attacks against the civilian population, humanitarian personnel, and protected objects; enlisting children under fifteen or using them in hostilities; and killing or wounding treacherously a combatant adversary.
In its request, the OTP did not consider the conduct of other terrorist groups operating in Afghanistan, such as Daesh/Islamic State Khorasan Province (Daesh/ISKP). This is mainly due to the OTP’s limited powers during preliminary examination, the lower evidentiary threshold at the pre-investigative stage, and the ambiguous relationship between the Taliban and other terrorist groups. For example, Daesh/ISKP claimed a recent attack in Kabul, but the U.S. military believed that the Taliban were the true authors of the attack. Similarly, the Taliban and Daesh seem to have acted in concert in the massacre of ethnic Hazara civilians in the Mirza Olang village of Sari Pul province in August 2017. As the OTP acknowledged, once the investigation is authorized, it will be necessary (and more feasible) to closely examine the violence perpetrated by these other groups and their links with the Taliban.
Perhaps the biggest omission in the OTP’s request is the crime against humanity of persecution against any identifiable group or collectivity on ethnic and religious grounds. In particular, the widespread and systematic attacks against the ethnic Hazara population, of largely Shia denomination, are conspicuously missing in the submission. Adding to their historical persecution, the Taliban and Daesh affiliated groups have launched an onslaught of attacks against Hazaras in both Afghanistan and Pakistan in recent years. Yet the OTP only cites one such attack—the killing of 11 people in the Khas Uruzgan district on June 24, 2010—in charging the Taliban and affiliated armed groups with the crime against humanity of murder, not persecution on ethnic and religious grounds.
The absence of the additional charge from the OTP’s request, at least at this preliminary stage, may be due to the perceived politically sensitive nature of the issue. The Afghan government has not exactly taken a kind stance toward Hazaras. For instance, against the recommendation of an independent German engineering firm tasked with evaluating potential routes, the government recently scrapped a plan to implement a major electricity project through the Hazara-populated regions. The government’s decision prompted a public outcry and protests in Kabul. The protests were attacked by terrorists reportedly affiliated with Daesh, resulting in approximately 500 civilian casualties, almost all of whom were Hazara. Despite the potential sensitivity of the issue, the omission of this charge from the OTP’s request does not preclude its examination once the PTC authorizes a formal investigation. Given the preliminary nature of the pre-investigative stage, a formal investigation could—and should—be expanded to examine other potential crimes, including ethnicity and religion-based persecution.
Afghan National Security Forces
The OTP is also scrutinizing the role of the Afghan government in the conflict. The OTP alleges that the Afghan National Security Forces (ANSF) committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and sexual violence against conflict-related detainees. The OTP accuses members of the National Directorate for Security (NDS) and the Afghan National Police (ANP) of perpetrating these Article 8 crimes on a large scale.
For these charges to continue, the Court must have jurisdiction over the case, and the case must be admissible. As a State Party to the Rome Statute, Afghanistan is subject to the Court’s jurisdiction for all crimes committed within its territory since May 1, 2003. With regard to admissibility, Article 17 of the Rome Statute stipulates that for a case to be admissible, (1) the State that would normally have jurisdiction must be “unwilling or unable genuinely to carry out the investigation or prosecution”; (2) any decision not to prosecute by the State must have “resulted from the unwillingness or inability of the State genuinely to prosecute”; (3) the defendant must not have been tried before; and (4) the case must be sufficiently grave. The first three factors are sometimes referred to as the “complementarity” component of the admissibility test, while the fourth element forms the “gravity” component. The OTP argues that the case here satisfies all of the above criteria. It found that no national investigations or prosecutions have been conducted or are ongoing against those most responsible for the alleged crimes, and that the gravity of the alleged conduct warrants prosecution.
One obstacle to the Court’s exercise of authority is Afghanistan’s 2007 amnesty law, which pardons perpetrators of war crimes and crimes against humanity.  In its request, the OTP rightly criticizes the law of contributing to a culture of impunity within the country. For example, the Afghan government invoked the amnesty law in its peace deal with Hezb-e-Islami, a previously terrorist-designated group led by the notorious warlord Gulbuddin Hekmatyar. After the government pardoned him, Hekmatyar was taken off the UN sanctions list, and his fighters have been released from prison—only to join the Taliban and resume fighting. Since returning to Kabul, Hekmatyar has sowed discord and even endorsed suicide attacks.
The ongoing peace process with the Taliban will further complicate the task of investigating the alleged crimes. Buoyed by the Hekmatyar deal, President Ghani has continued Karzai’s policy of wooing the Taliban, the group responsible for most of the alleged crimes. Ghani’s recent unilateral ceasefire with the Taliban resulted in thousands of insurgents pouring into major cities and even occupying areas in Kabul. Such “peace” deals with the Taliban—in which key stakeholders such as victim representatives and human rights groups are not given a voice—will inevitably pose major challenges to the OTP’s proposed investigations of the atrocities.
U.S. Armed Forces and the CIA
In addition to the Taliban and Afghan officials, in an unprecedented move, the OTP has proposed investigation of alleged war crimes by U.S. authorities. In particular, the PTC must decide whether to authorize investigation of the following alleged Article 8 crimes by the U.S. armed forces and the CIA: torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence. The alleged crimes include those committed in Afghanistan, as well as those committed in other States Parties that have a nexus to the Afghan conflict: Poland, Romania, and Lithuania. These alleged acts were committed against suspected Taliban and Al Qaeda detainees, primarily during the period from 2003 to 2004. Having deemed the alleged crimes sufficiently grave, the OTP has further contended that domestic investigations and proceedings by the United States have focused on the rank-and-file rather than those most responsible for the alleged crimes.
So far, the U.S. government has argued that the ICC lacks jurisdiction over American nationals because the United States is not a party to the Rome Statute. However, pursuant to Article 12(2), the Court has jurisdiction over any crimes committed on the territory of Afghanistan since May 1, 2003, regardless of nationality. According to the former chief prosecutor of the ICC, a better argument might be based on the Status of Forces Agreement (SOFA) between the United States and Afghanistan, which could preclude the ICC from exercising jurisdiction over American nationals. But SOFA-based arguments, like the one raised by Michael Newton, are also susceptible to challenges. This is because of at least four reasons:
First, such arguments typically fail to distinguish between the existence of jurisdiction and its exercise. Broadly speaking, jurisdiction entails two distinct aspects: jurisdiction to prescribe and jurisdiction to enforce. Prescriptive jurisdiction, also known as legislative jurisdiction, refers to the state’s authority to assert the applicability of its laws to given conduct. Meanwhile, enforcement jurisdiction, also called executive jurisdiction, is the state’s right to enforce its laws through its investigative and coercive powers. Unlike enforcement jurisdiction, prescriptive jurisdiction can be extraterritorial.
Under Article 98(2) of the Rome Statute, certain international agreements, like the SOFA, may constrain the exercise of domestic enforcement jurisdiction by a State Party. However, such agreements do not extinguish a State Party’s plenary prescriptive jurisdiction. Prescriptive jurisdiction is an inherent attribute of a state’s sovereignty—that is, the “exclusive competence of the State in regard to its own territory”—and, as such, cannot be contracted out through the SOFA.
Second, the Rome Statute’s structure suggests that the Court’s jurisdiction is not precluded by bilateral agreements like the SOFA. Article 98, on which Newton’s argument rests, is located within Part XI of the Rome Statute, which addresses international cooperation, rather than Part II, which addresses jurisdiction.
Third, a distinction should be made between the ICC’s jurisdiction over the crime of aggression on the one hand, and the Court’s jurisdiction over war crimes and crimes against humanity on the other. While Article 15 bis (5) expressly excludes the Court’s jurisdiction over the crime of aggression committed by nationals of non-States Parties, the Rome Statute provides no such exclusion in respect of war crimes and crimes against humanity.
Finally, other major international conventions provide similar criminal jurisdiction over nationals of non-States Parties. Examples include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention against Transnational Organized Crime. For these reasons, the Court should not be in want of legal ammunition as it considers asserting jurisdiction over the United States.
Besides the substantive legal points, however, the OTP’s proposed investigation into U.S. conduct in Afghanistan also raises significant political and prudential questions. The Trump administration, known for its hostility toward international agreements and institutions, seems poised to adopt a particularly combative stance toward the ICC. Last year, now-National Security Advisor John Bolton condemned the OTP’s plan in this case, arguing that “the Trump administration should not respond to Ms. Bensouda in any way that acknowledges the ICC’s legitimacy.” Indeed, Bolton suggested, “[e]ven merely contesting its jurisdiction risks drawing the U.S. deeper into the quicksand.” Recently, the United States also boycotted an informal UN Security Council meeting marking the Rome Statute’s twentieth anniversary. Such a decision is rare for a permanent member of the Council, and reflects the Trump administration’s particular disdain for the Court.
The Trump administration’s stance towards the Court represents a marked shift from the policy of strategic collaboration that prevailed during the second half of the Bush administration and under President Obama. It harkens back to—and builds upon—the United States’ historical antagonism with the Court. Back in 2002, when the Court was founded, Congress passed the American Service-Members’ Protection Act (ASMPA), a bill designed to limit cooperation with the Court. Meanwhile, the Bush administration tried to isolate the Court and prevent it from acquiring further legitimacy by not only “unsigning” the Rome Statute, but also entering into more than one hundred bilateral immunity accords with States Parties. These “Article 98 agreements” were designed to exempt Americans from ICC jurisdiction. (The SOFA with Afghanistan is one such agreement.)
This history and recent actions by the Trump administration suggest that the OTP will likely encounter significant resistance from U.S. authorities in its investigation (assuming that it is approved by the PTC).
Afghans anxiously await the ICC’s (likely affirmative) decision to authorize a formal investigation. Despite the difficulties the OTP encountered in reaching out to victims, the victim representations it received overwhelmingly support the investigation into war crimes and crimes against humanity in Afghanistan. Taking advantage of an increasingly feckless, and at times conniving, Afghan government, the Taliban and their affiliates continue to inflict bloodshed and suffering on the Afghan people. A formal investigation into the atrocities in Afghanistan is long overdue, and will be an uphill battle. But justice demands an emphatic answer to those who’ve grown accustomed to, and profited from, impunity—no more.
* Mehdi J. Hakimi is the executive director of the Rule of Law Program and lecturer-in-law at Stanford Law School. Mr. Hakimi was the former chair of the law department at the American University of Afghanistan.
 Situation in the Islamic Republic of Afghanistan, No. ICC-02/17, Request for Authorisation of an Investigation Pursuant to Article 15, ¶ 72 (Nov. 20, 2017), at https://www.icc-cpi.int/CourtRecords/CR2017_06891.PDF [hereinafter “OTP Request”]; Rome Statute of the International Criminal Court arts. 7(1)(a), (e), (h), opened for signature July 17, 1998, 2187 U.N.T.S. 90 [hereinafter “Rome Statute”].
 OTP Request, supra note 1, at ¶ 123; Rome Statute art. 8.
 See OTP Request, supra note 1, at ¶¶ 37, 62-63.
 Id. at ¶ 100.
 See, e.g., Situation in the Republic of Kenya, No. ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ¶¶ 74-75 (Mar. 31, 2010), at https://www.legal-tools.org/doc/f0caaf/pdf/ (“The Chamber also underlines that in the development of the proceedings the Prosecutor is neither bound by his submissions with regard to the different acts constituting crimes against humanity, nor by the incidents and persons identified in the annexes appended to the Prosecutor’s Response. . . .”).
 OTP Request, supra note 1, at ¶ 161.
 Rome Statute art. 17(1).
 OTP Request, supra note 1, at ¶¶ 269, 276.
 See id. at ¶¶ 337, 344.
 Id. at ¶ 5.
 Id. at ¶ 187.
 See id. at ¶¶ 299-300.
 See Michael A. Newton, How the International Criminal Court Threatens Treaty Norms, 49 Vand. J. Transnat’l L. 371, 405 (2016) (arguing that the SOFA between the United States and Afghanistan obviated the latter’s ability to delegate jurisdiction over U.S. nationals for crimes committed in its territory to the ICC).
 For analysis of the differences between the various aspects of state jurisdiction, see generally Roger O’Keefe, Response: “Quid,” Not “Quantum”: A Comment on “How the International Criminal Court Threatens Treaty Norms”, 49 Vand. J. Transnat’l L. 433, 435 (2016); Carsten Stahn, Response: The ICC, Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Nemo Dat Quod Non Habet Doctrine—A Reply to Michael Newton, 49 Vand. J. Transnat’l L. 443, 450 (2016). See also Roger O’Keefe, Universal Jurisdiction—Clarifying the Basic Concept, 2 J. Int’l Crim. Just. 735, 736-37 (2004).
 A state’s “title to exercise jurisdiction rests in its sovereignty.” SS Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 19.
 Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928).
 See Newton, supra note 13, at 391 (discussing the intent of Article 98).
 In full, Article 15 bis (5) states: “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” Rome Statute art. 15 bis.
 See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 5, Dec. 10, 1984, 1465 U.N.T.S. 85; Convention against Transnational Organized Crime art. 15, Nov. 16, 2000, 2225 U.N.T.S. 209.