The Situation in Afghanistan, US Sanctions and the Historical Narratives Emerging from the ICC
Posted: Mon Feb 17, 2025 9:18 am
On 11 June 2020, the US announced a series of economic and travel sanctions against any officials of the ICC involved in an investigation into whether US forces committed war crimes related to the Afghan conflict (see here). The ICC Appeals Chamber had previously authorised the ICC Prosecutor to commence such an investigation (see here) and these sanctions are aimed at scuppering any attempt at investigating the actions of US forces. Previous discussions on this topic may also be found here.
Given the geopolitical forces at play and the dependence of the ICC on the cooperation of States for effective investigations, evidence and prosecutions, it is likely (if unfortunate) that the US will employment database succeed in disrupting effective investigations into the possible involvement of US forces. The exclusion of one of the key “sides” to the Afghan conflict will naturally raise questions of victor’s justice. As a secondary, but important, consideration, it will also have implications for the historical narratives about the conflict emerging from the ICC. It is this latter issue that will be addressed in this post.
Essentially, I will argue that, as the ICC Prosecutor has a duty to establish truth about the conflict (Article 54(1)(a)), it is appropriate to have regard to Bernard William’s concept of truthfulness and the two virtues of truth: accuracy and sincerity. The starting point is the uncontroversial premise that, in order to ensure the sincerity of the search for truth, the Prosecutor’s investigation should aim to impartially investigate all sides to the conflict that could reasonably be considered to fall within the jurisdiction of the Court. In this respect, in her original request, the Prosecutor had identified three possible “sides”: (1) the Taliban and affiliated groups for crimes against humanity and war crimes; (2) the Afghan National Security Forces for war crimes; and (3) the armed forces of the United States of America and its Central Intelligence Agency for war crimes. However, if the ICC Prosecutor finds that, on account of external pressures (such as threats of non-cooperation and/or sanctions), she is unable to investigate all sides, she should, at least, be prepared to communicate more openly the impact of such pressures (and possible exclusions) on her ability to establish truth accurately and sincerely. This is not least because of the implications of such exclusions for the historical narratives emerging from the ICC.
Given the geopolitical forces at play and the dependence of the ICC on the cooperation of States for effective investigations, evidence and prosecutions, it is likely (if unfortunate) that the US will employment database succeed in disrupting effective investigations into the possible involvement of US forces. The exclusion of one of the key “sides” to the Afghan conflict will naturally raise questions of victor’s justice. As a secondary, but important, consideration, it will also have implications for the historical narratives about the conflict emerging from the ICC. It is this latter issue that will be addressed in this post.
Essentially, I will argue that, as the ICC Prosecutor has a duty to establish truth about the conflict (Article 54(1)(a)), it is appropriate to have regard to Bernard William’s concept of truthfulness and the two virtues of truth: accuracy and sincerity. The starting point is the uncontroversial premise that, in order to ensure the sincerity of the search for truth, the Prosecutor’s investigation should aim to impartially investigate all sides to the conflict that could reasonably be considered to fall within the jurisdiction of the Court. In this respect, in her original request, the Prosecutor had identified three possible “sides”: (1) the Taliban and affiliated groups for crimes against humanity and war crimes; (2) the Afghan National Security Forces for war crimes; and (3) the armed forces of the United States of America and its Central Intelligence Agency for war crimes. However, if the ICC Prosecutor finds that, on account of external pressures (such as threats of non-cooperation and/or sanctions), she is unable to investigate all sides, she should, at least, be prepared to communicate more openly the impact of such pressures (and possible exclusions) on her ability to establish truth accurately and sincerely. This is not least because of the implications of such exclusions for the historical narratives emerging from the ICC.