Accountability for International Crimes in Afghanistan

At a Glance

Date Filed: 

November 20, 2017

Current Status 

On December 4 to 6, the Center for Constitutional Rights presented argument before the International Criminal Court (ICC) in The Hague on behalf of two men detained at Guantánamo, urging the Court to authorize an investigation of torture and other crimes committed since May 2003.  The appeal follows the Pre-Trial Chamber's denial of the request by the ICC Prosecutor Fatou Bensouda to open a formal investigation into crimes committed in Afghanistan and territories of other States that are parties to the ICC arising out of inter alia torture by the C.I.A. and other U.S. actors, issued on April 12, 2019.  CCR submitted victims' representations on behalf of Sharqawi Al Hajj and Guled Duran in support of the Prosecutor's request in January 2018. 
 

Separately, on June 5, 2019, CCR submitted a complaint to the Special Rapporteur on the Independence of Judges and Lawyers seeking a comprehensive investigation into U.S. interference in proceedings at the ICC, which remains pending.

Case Description 

International Criminal Court (ICC) Prosecutor Fatou Bensouda filed a request with the Pre-Trial Chamber on November 20, 2017 seeking judicial authorization to open a formal investigation into crimes committed in Afghanistan since May 2003 and on the territory of other States Parties where crimes with a nexus to the armed conflict were committed since July 2002. The request follows a decade-long preliminary examination into possible international crimes committed on the territory of Afghanistan, which became a State Party to the ICC on May 1, 2003. The investigation would explore crimes committed in the context of the armed conflict in Afghanistan by U.S. forces or the C.I.A., members of the Taliban, and officials of the Afghan government.

One hundred and twenty-three countries, including Afghanistan, are member-states of the ICC.  The ICC has jurisdiction to adjudicate crimes under international law committed on the territory of States that have joined the Court, against nationals of countries that have joined, or upon referral by the Security Council.  Because the alleged crimes occurred on the territory of Afghanistan and at least also on the territory of Romania, Lithuania, and Poland, which are all States Parties to the ICC, investigations can proceed in regards to crimes committed by U.S. actors - even though the U.S. is not a party - in addition to Afghan, Taliban, or related forces. The investigation can seek evidence of crimes against humanity and war crimes, including torture, committed by U.S. actors during the armed conflict in Afghanistan, or with a nexus thereto, and at so-called "black sites" in other countries. Notably, the jurisdiction of the ICC could include on-going international crimes committed on the territory of Afghanistan.

The Pre-Trial Chamber set a deadline of January 31, 2018 for victims to present their views on the opening of an investigation, including the scope of the investigation.  CCR submitted a filing, concerning two men detained at Guantánamo, Sharqawi Al Hajj and Guled Duran, in support of the ICC Prosecutor’s request on that date. The filing, which includes two “victim’s representations,” draws from publicly available information to detail the treatment, including torture, that the men endured in CIA black sites, proxy-detention, and DOD facilities, as well as their ongoing indefinite detention at Guantánamo, elaborates on the importance of an ICC investigation into these international crimes, and elaborates on the suggested scope of the inquiry to ensure the investigation captures the full liability of those who bear the greatest criminal responsibility.

For other cases challenging war crimes and crimes against humanity under international law, see Accountability for U.S. Torture: France; Accountability for U.S. Torture: Spain; Accountability for U.S. Torture: Germany; Accountability for U.S. Torture: Switzerland; and Accountability for U.S. Torture: Canada. See also Katherine Gallagher, Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture, Journal of International Criminal Justice (2009)).

Case Timeline

December 4-6, 2019
Hearing in The Hague
December 4-6, 2019
Hearing in The Hague
The Appeals Chamber issues its decision on the conduct of the hearing on November 22, 2019. The hearing takes place on December 4 through December 6, 2019 in The Hague.
November 26, 2019
Appeals Chamber grants Afghanistan's request to participate in hearing
November 26, 2019
Appeals Chamber grants Afghanistan's request to participate in hearing
Afghanistan files its written submissions on December 2, 2019.
November 15, 2019
Experts, Defense, and cross-border victims submit briefs to Appeals Chamber
November 15, 2019
Experts, Defense, and cross-border victims submit briefs to Appeals Chamber
Former chief prosecutors, international human rights and criminal law experts, and non-governmental organizations file amicus briefs on November 15, 2019. The Office of Public Counsel for the Defence (OPCD) and Victims of Cross-Border Aerial Bombardment also submit briefs on November 15, 2019. The Prosecutor submits a response to the amici curiae and cross-border victims on November 25, 2019. The legal representatives of victims file responses to the OPCD, cross-border victims, and amici on November 29, 2019.
October 28, 2019
Order replacing judge in Appeals Chamber
October 28, 2019
Order replacing judge in Appeals Chamber
October 15, 2019
Requests to file amicus briefs submitted
September 30, 2019
Victims submit joint appeal brief
September 27, 2019
Appeals Chamber issues scheduling order
September 27, 2019
Appeals Chamber issues scheduling order
The Appeals Chamber sets briefing schedule for Victims and Prosecution, invites interested States as well as international law experts and human rights organizations to submit briefs, and schedules a hearing on standing, jurisdiction, and the merits for December 4 to 6, 2019 in The Hague.
September 24, 2019
Appeals Chamber grants victims' request for page extension of appeal briefs
September 24, 2019
Appeals Chamber grants victims' request for page extension of appeal briefs
The Appeals Chamber grants the request "based on the complexity and novelty of the issues that will be raised on appeal," and extends the page limit to 75 pages, equivalent to the Prosecutor's brief.
September 17, 2019
Appeals Chamber grants in part Prosecutor's Request for Leave to Appeal; dismisses by majority Victims' Request for Leave to Appeal
September 17, 2019
Appeals Chamber grants in part Prosecutor's Request for Leave to Appeal; dismisses by majority Victims' Request for Leave to Appeal
September 13, 2019
Victims' Request for Scheduling Order submitted to Appeals Chamber
September 13, 2019
Victims' Request for Scheduling Order submitted to Appeals Chamber
July 12, 2019
Office of Public Counsel for Victims submission
July 12, 2019
Office of Public Counsel for Victims submission
July 11, 2019
Amicus briefs submitted in support of appeal
June 24, 2019
Briefing before Appeals Chamber is stayed
June 24, 2019
Briefing before Appeals Chamber is stayed
June 12, 2019
Prosecutor's objection to Victims' Notice of Appeal
June 12, 2019
Prosecutor's objection to Victims' Notice of Appeal
The Center for Constitutional Rights and other legal representatives of victims file their response on June 19, 2019.
June 10, 2019
Center for Constitutional Rights and other legal representatives of victims file Victims' Notice of Appeal
June 10, 2019
Center for Constitutional Rights and other legal representatives of victims file Victims' Notice of Appeal
June 7, 2019
Prosecutor requests leave to appeal Pre-Trial Chamber decision
June 7, 2019
Prosecutor requests leave to appeal Pre-Trial Chamber decision
The Center for Constitutional Rights and other legal representatives of victims file their response on June 13, 2019.
June 5, 2019
Complaint to Special Rapporteur on Independence of Judges and Lawyers
June 5, 2019
Complaint to Special Rapporteur on Independence of Judges and Lawyers
May 31, 2019
Concurring opinion is issued
May 31, 2019
Concurring opinion is issued
April 12, 2019
ICC Pre-Trial Chamber denies Prosecutor's request
April 12, 2019
ICC Pre-Trial Chamber denies Prosecutor's request
The ICC Pre-Trial Chamber denies the Prosecutor's request to authorize an investigation into crimes in Afghanistan et al., including U.S. torture.
December 6, 2018
CCR sends letter to ICC regarding declining health of Sharqawi Al Hajj and lack of U.S. response
November 20, 2018
Joint press release on one year anniversary of Prosecutor's request for authorization of investigation
November 20, 2018
Joint press release on one year anniversary of Prosecutor's request for authorization of investigation
April 3, 2018
Letter to Pre-Trial Chamber regarding announcement of Gina Haspel nomination for CIA Director
April 3, 2018
Letter to Pre-Trial Chamber regarding announcement of Gina Haspel nomination for CIA Director
The letter from the Center for Constitutional Rights explains the urgency of the Prosecutor's Request, describes Haspel's history of implication in torture, and discusses the risk of a return to torture in her new role.
February 20, 2018
Report on victims' representations
February 20, 2018
Report on victims' representations
The Registry issues a consolidated report on victims’ representations, which details first an overview of the process including particular challenges due to the security situation in Afghanistan, and then provides an overview of the number, type, scope and views contained in the victims’ representations.
January 31, 2018
CCR submits filing concerning two men detained at Guantánamo in support of Prosecutor's request
January 31, 2018
CCR submits filing concerning two men detained at Guantánamo in support of Prosecutor's request
The filing, which includes two “victim’s representations,” draws from publicly available information to detail the treatment, including torture, that the men endured in CIA black sites, proxy-detention, and DOD facilities, as well as their ongoing indefinite detention at Guantánamo, elaborates on the importance of an ICC investigation into these international crimes, and elaborates on the suggested scope of the inquiry to ensure the investigation captures the full liability of those who bear the greatest criminal responsibility. CCR also urges the ICC to include CIA proxy-detention and continuing crimes at Guantánamo in its investigation, to consider crimes against humanity as well as war crimes for U.S. actors, and to include senior civilian and military leadership as well as private contractors among the potential perpetrators to be investigated for possible prosecution in The Hague.
December 12, 2017
Prosecutor submits additional information to Pre-Trial Chamber
December 12, 2017
Prosecutor submits additional information to Pre-Trial Chamber
November 20, 2017
Formal request for authorization of investigation
November 20, 2017
Formal request for authorization of investigation
November 9, 2017
Order on victim participation
November 3, 2017
ICC Prosecutor announces request to open formal investigation
August 21, 2017
Trump announces plan for U.S. military escalation in Afghanistan
August 21, 2017
Trump announces plan for U.S. military escalation in Afghanistan
April 3-7, 2017
Civil society delegation to The Hague to request full investigation
April 3-7, 2017
Civil society delegation to The Hague to request full investigation
Following the visit of a delegation of Afghan civil society members and human right defenders to The Hague to meet with ICC representatives, CCR, the International Federation for Human Rights (FIDH), OPEN ASIA / Armanshahr, and the Afghanistan Transitional Justice Coordination Group (TJCG) call upon the ICC Prosecutor to request the opening of a full investigation into the situation in Afghanistan.
November 14, 2016
2016 report on ICC preliminary examinations
November 14, 2016
2016 report on ICC preliminary examinations
The report finds there is a reasonable basis to believe that war crimes occurred and states that the Office of the Prosecutor will make a final decision on whether to request authorization to open a formal investigation imminently.
November 12, 2015
2015 report on ICC preliminary examinations
November 12, 2015
2015 report on ICC preliminary examinations
December 9, 2014
Release of Senate Select Committee on Intelligence (SSCI) CIA Torture Report
December 9, 2014
Release of Senate Select Committee on Intelligence (SSCI) CIA Torture Report
The report reveals information about the use of torture in the CIA’s post-9/11 interrogation and detention program.
December 2, 2014
2014 report on ICC preliminary examinations
December 2, 2014
2014 report on ICC preliminary examinations
2007
ICC makes public preliminary examination of war crimes and crimes against humanity in Afghanistan
2007
ICC makes public preliminary examination of war crimes and crimes against humanity in Afghanistan
February 10, 2003
Afghanistan accedes to Rome Statute, allowing ICC jurisdiction
February 10, 2003
Afghanistan accedes to Rome Statute, allowing ICC jurisdiction