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Sun. September 19, 2021
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Necessary but Ill-timed: the ICC Investigation into the Afghanistan Situation
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By Faith Fisher

The International Criminal Court recently authorized a probe into alleged war crimes and crimes against humanity committed during the conflict in Afghanistan by the members of the Taliban, Afghan forces, and United States personnel. Although human rights groups hail the unprecedented decision as a vindication of the rule of law, the ICC has received staunch backlash from United States officials. This backlash is justified, but for the wrong reasons.

Historically critical of the ICC, the United States never ratified the Rome Statute, the institution’s founding document. For this reason, many United States officials denounce the decision as a blatant infringement upon national sovereignty. Despite the criticism, the International Criminal Court does in fact possess the jurisdiction to investigate the alleged crimes against all parties in question-- member and non-member-- pursuant to article 12 of the Rome Statute.

The problem, therefore, is not that the court will undermine the United States sovereignty by investigating state officials. Rather, the decision is problematic because the ICC will seek to implicate members of the Taliban before peace solidifies in Afghanistan. After two decades of devastating conflict, peace must be the first priority for the war-weary nation of Afghanistan.

Coming just days after a historic peace agreement between Washington and the Taliban, the investigation severely jeopardizes the country’s most promising bid for peace in 20 years. The ICC’s ill-timed probe, therefore, is solely in the interest of justice, justice in a strictly legal sense.

War crimes and crimes against humanity are both criminal and political in nature, and the United States and the Taliban have yet to resolve the underlying political problems that have contributed to 20 years of violence in Afghanistan. In order to ward off future violence, the war-torn nation must first attain peace and stability. This can only be attained by ameliorating existing political rifts and developing strong national institutions that cement the rule of law and shield against human rights abuses. The ICC’s pursuit for justice myopically ignores these considerations. 

Given the preventative capacity of international justice and the resounding demands for justice from victims, impunity is not a viable option. Yet, with ongoing violence and continued political turmoil in Afghanistan perpetrated by the Taliban, the threat of criminal accountability would be yet another unwelcome point of contention in the already arduous, complicated path to peace in Afghanistan. Threatening to implicate members of the Taliban before establishing national peace and reconciliation risks incentivizing the insurgent group to consolidate their power in the region; because the ICC relies on cooperation from the state-level, the Taliban would seek to guarantee its immunity under the shield of state power. Having shown only a loose commitment to stipulations of the peace deal as it is, a probe by the ICC, at present, could virtually extinguish any potential for peaceful acquiescence by the Taliban.

Therefore, legal justice must be suspended until a new order materializes in Afghanistan. Trials can only be effective once the underlying political problems-- which drive these crimes-- have been resolved.

In the Afghanistan case, the ICC construes justice as law alone, which is a flawed interpretation. It dismisses its inherent political underpinnings; purely judicial solutions cannot address the political problems that presently manifest themselves in the form of violence. Justice, in a more comprehensive interpretation, must seek political solutions as well as the development of institutions that protect human rights and structurally prevent future abuses. It is unlikely, however, that such institutional developments can successfully take hold, nonetheless advance, in the midst of a destabilizing war.

Furthermore, it is important to recognize that justice and peace need not be mutually exclusive. Justice is a major tenant of order, but only when the rule of law is already institutionalized. The ICC cannot productively work within a legal vacuum. Therefore, as a part of its justice campaign, the court must work to build the capacity of the Afghan national justice system. The consolidation of the rule of law in the national system would not only allow the ICC to effectively pursue justice, but it would also foster within the domestic system the norm of accountability as deterrence against future crimes. This attainment of comprehensive justice hinges, however, on a crucial precondition: an end to violence and a stable peace.

In addition to criminal accountability, true justice for the nation of Afghanistan will require institutional changes, changes which can only be developed within a stable and peaceful political order. The ICC’s premature probe seriously endangers the prospect of this order. Justice, in its purely legal sense, must be delayed; legal justice cannot come at the expense of peace.

Faith Fisher is a student at Cornell University studying Government and Spanish. She has special interests in international relations, international law, and public policy. 

 

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