The armed conflict in Afghanistan has been one of the most perplexing and taxing in recent history with its wide range of stakeholders and mammoth economic and human costs. On 20th November 2017, the Office of the Prosecutor for the International Criminal Court (ICC) put a spanner in the works of this politico-legal quagmire by requesting authorisation for an investigation into the war crimes and crimes against humanity committed in Afghanistan since May 2003. Acceptance of the request by the Court would be the first step in an eventual trial of these atrocity crimes at the ICC.

We may well have breathed a sigh of relief at the ICC Prosecutor’s express identification of the Taliban regime and its affiliated Haqqani Network, the Afghan National Security Forces and the United States armed forces as the main actors that it intends to prosecute. A detailed reading of the Request, however, shows that Pakistan is not immune from the Court’s jurisdiction in this case. The Prosecutor has expressly left-open the option of prosecuting other actors in the region once its request for full-fledged investigations is granted (paras 38 and 260 of the Request.

So far, International legal experts have focused on the Prosecutor’s accusations against the US armed forces; if found guilty, members of the US military and civilian hierarchy (“those most responsible” for the atrocities) would be labelled as war criminals, sentenced to stints in prison and ordered to pay reparations. Less attention has been paid to the possibility of other major stakeholders in the region being a target of ICC prosecution.

There are obvious questions pertaining to the relevance of these developments. Are Pakistani nationals at risk of prosecution should this trial come about? If so, how is it possible for an international tribunal that is not recognised by Pakistan to exercise jurisdiction over its nationals?

It is indeed possible for the ICC to try Pakistani nationals for war crimes and crimes against humanity. Moreover, under the current circumstances, it has enough legal firepower to, at the very least, bring up the issue at trial.

Firstly, Pakistan is not a state party to the Rome Statute; it does not recognise the ICC’s competence to try atrocity crimes. Under normal circumstances, this would mean that no Pakistani would ever be prosecuted at the Court. However, because the crimes under consideration occurred in Afghanistan, an ICC state party since 2003, the Court has jurisdiction (under article 12 of its status) to try nationals of any state that commit atrocity crimes on its territory. The ICC has already demonstrated its ambition by seeking to prosecute nationals of the United States, which is also not a state party to the ICC, and despite the US’s painstaking efforts to the contrary throughout the 20 years that the Court has been in existence. Keeping this in mind, prosecution of Pakistani nationals does not seem like impossibility.

Under what basis then can the ICC come after Pakistani officials? The only way to trace back the commission of atrocity crimes to Pakistani officials, within the ICC’s current scope of investigation, is by holding them responsible for ‘controlling’ the actions of non-state armed groups that have committed war crimes and crimes against humanity in Afghanistan. This can be done by employing a loose interpretation of ‘control’ under the Article of State Responsibility (a set of customary international law rules that are binding on all states, including Pakistan). This looser interpretation requires only that the state provide general coordination and support to the non-state group for all of that group’s actions to be imputed to it; an interpretation used in the past at the International Criminal Tribunal for the former Yugoslavia, and by the ICC itself in a case relating to war crimes committed in the Democratic Republic of Congo.

Pakistan has been the target of a steady and ever-growing stream of accusations linking it with the ‘control’ or ‘influence’ over certain groups in Afghanistan; an accusation that has been denied persistently. Of course, the actual accusations that can be made by the prosecution will depend upon the quality of evidence provided. To the writer’s knowledge, there have been no official accusations of the kind that have provided solid evidence to this effect. Nevertheless, in respect of the overall context, it would be naïve to dismiss the possibility of such charges being brought against Pakistan, especially when the Prosecutor has declared her intention to investigate all other major stakeholders in the region.

Experts believe that Pakistani officials are at a very real risk of standing trial for crimes against humanity and war crimes in The Hague, if the Pre-trial Chamber provides judicial authorisation for the commencement of formal investigations into the situation in Afghanistan. Should this happen, the first step for the Office of the Prosecutor would be to officially notify the Foreign Office of its intention to prosecute, and give Pakistan the opportunity to carry out domestic investigations and eventual trials of those it recognises as most responsible for the alleged crimes. Alternatively, it would request that Pakistan cooperate in providing access to all relevant evidence relating to the crimes that it is investigating. The third option for Pakistan would be to not cooperate with the Court at all; a strategy employed by other states in the past to varying degrees of success.

The aim of the ICC, and international criminal justice, is to contribute to world peace and security by putting an end to impunity for atrocity crimes. Whether ICC prosecution will bring about peace and reconciliation in Afghanistan, however, is not entirely certain. More specifically, prosecution of officials of Pakistan, which has spent upwards of 100 billion dollars and sustained over 70,000 civilian deaths because of war in Afghanistan, could serve to alienate it from any future peace-building efforts. Whatever the outcome, this developing situation has put the ICC on the map as another stake holder aiming to assert its influence in the region. Pakistan should tread the waters carefully.

 

n          The writer is student of LLM in Public International Law – University of Nottingham.

Pakistan has been the target of a steady and ever-growing stream of accusations linking it with the ‘control’ or ‘influence’ over certain groups in Afghanistan; an accusation that has been denied persistently.