Editor’s note: This article is part of Just Security’s ongoing coverage of the U.S. military withdrawal and Taliban takeover in Afghanistan.
Afghan activists, journalists, and advocates for women’s rights scrambled to identify escape routes Sunday as international civil society organizations intensified a chaotic effort to evacuate local allies under threat following the Taliban’s overthrow of the Afghan government. The stunningly swift collapse of the Afghan state injected a sense of desperation into a months-long effort by outside aid groups and religious and advocacy organizations to secure visas, flights or other paths out for Afghans seen as likely targets by the Taliban and other actors emboldened by the collapse of the Afghan state.
Activists have rightfully focused their efforts on saving the lives of individuals who will be targeted or are otherwise under serious threat of violence. But in the scramble to evacuate individuals, the international community should not overlook the securing of documentation that has been collected over the past two decades concerning the commission of international crimes and other human rights abuses in Afghanistan.
Without rapid collection, protection, and transport, there is the sincere danger that the tranche of information that has been collected since the Taliban’s fall in 2001 could be destroyed or, worse, misused. The potential loss of this information would deal a massive blow to accountability efforts, including the International Criminal Court (ICC) investigation or a prospective United Nations fact-finding mission. If misused, these data – which contain and consolidate sensitive identifying information of sources attesting to Taliban and other crimes – could also expose sources, victims, and witnesses to real threats of harm.
This article outlines the immediate need to preserve and protect archives of evidence and other information relating to international crimes and human rights abuses in Afghanistan, and the responsibility of the ICC in those efforts.
The Immediate Need to Preserve and Protect Documentation of Crimes
The Taliban’s fall in 2001 led to the expansion and growth of local civil society and government organizations in Afghanistan dedicated to preserving and documenting information relating to human rights violations and international crimes committed in Afghanistan. Between 2001 and 2004, the national Afghan Foundation for Culture and Civil Society found that 1,339 civil society organizations were formed outside of Kabul province alone, with many more formed within Kabul. Though these organizations pursued a variety of missions, many were devoted to documenting abuses by the Taliban, local non-governmental actors, and international actors alike.
The data collected by these organizations is impressive. They include forensic analyses of mass graves, victim statements, photographs and videos of crime scenes, and other contemporaneous artifacts that are essential to any fact-finding mission or criminal proceeding. Documentation and information-collection efforts particularly intensified over the past decade, after the ICC announced that it was undertaking a preliminary review of the Afghanistan Situation thereby initiating the first real prospects of accountability for senior level crimes. Those efforts grew further with increased violence in the past few years, particularly persecutory attacks directed against Afghanistan’s Hazara community.
The Taliban’s rapid advance through Afghanistan over the past few weeks and the chaotic departure of aid agencies prevented many organizations from securing and transporting huge swaths of documents and other artifacts concerning human rights abuses and crimes over the past decades. Though the Taliban have been present throughout the past two decades, most activists, lawyers, and organizations failed to anticipate that the Afghan central government would fall so rapidly to the Taliban in the aftermath of the U.S. withdrawal. That miscalculation resulted in proper steps not being taken to remove evidence from the country to avoid Taliban destruction or misuse. Actors on the ground, and likely at the ICC as well, evidently did not anticipate the quick fall. As a result, advocates thought they had months to arrange for transfer of evidence as the Taliban march toward Kabul loomed. In truth they had hours.
The Taliban’s takeover of Afghanistan, particularly Kabul, puts at clear risk both archived materials – including documents and physical evidence, such as weapons or forensic materials – and the witnesses, victims, and other sources that are key to the pursuit of justice. Of course, the highest priority must be given to ensuring the safety of individuals at risk, regardless of whether that risk is related to their status as witnesses or victims, or for any other reason. But the fact that so much evidence and so many witnesses remain in the country places both these individuals and the interests of justice at heightened risk, as well as endangering additional individuals who might be named in documents or evidence. The Taliban know that by targeting this evidence and these witnesses, they improve their chances to escape local or international justice.
The threat that such information could be destroyed, and the individuals sourced in them targeted, is all the more real when considering the wave of assassinations and kidnappings over the past 18 months targeting journalists, academics and advocates for peace. As noted by one expert earlier this year “[a]s the security situation continued to deteriorate in 2020, particularly after the talks between the Afghan government and the U.S. government began, the number of civilian attacks increased, including deliberate attacks against civilian and civilian objects. In 2020 my team and I documented more than 100 threats against civil society members.”
There are already indications that the Taliban have taken over the building which housed the Afghanistan Independent Human Rights Commission (AIHRC), the national human rights institution of Afghanistan created out of the 2001 Bonn Agreement and mandated in Afghanistan’s Constitution. In recent years, AIHRC staff were increasingly the target of violent attacks, including by the Taliban. The organization was also most recently leading calls for a United Nations fact-finding mission to investigate targeted attacks on civilians in Afghanistan following the May 8, 2021 terrorist attack on a high school in Kabul that resulted in the killing of at least 90 people, most of them schoolgirls. The Taliban takeover of the AIHRC headquarters may mean that the evidence housed there is already compromised – and that any witnesses or staff associated with the Commission are at immediate risk.
Given the quickened pace of events in Afghanistan, evidence preservation is an issue that requires the international community’s immediate attention. The window of opportunity here is likely short. There is still an international presence in Kabul. Despite having forces in Kabul, the Taliban have yet to consolidate complete authority there. The international community’s attention is likely at its peak, focused on any missteps by the Taliban that might suggest a return to 1990 levels of violence and repression. And the Taliban are clearly making overtures, however false, aimed at securing international recognition.
It is this moment where the international community can do the most to secure evidence archives in Afghanistan. After this moment, there will be little the international community can realistically do to protect information or evidence from spoliation or destruction. And there is equally very little prospect that the Taliban will enable any fact-finding missions to undertake credible investigations while they remain in power.
The ICC’s Role in Protecting against Evidence Destruction
Afghanistan’s new reality underscores the urgency of prompt action by the ICC.
Despite her motto to act “without fear or favour”, former Prosecutor Bensouda quietly suspended all investigative activities in the Afghanistan Situation following then-President Trump’s imposition of sanctions against her and Phakiso Mochochoko, director of the Jurisdiction, Complementarity and Cooperation Division. While those sanctions have since been removed, the Biden administration has continued to oppose an ICC investigation in Afghanistan, apparently believing that even a minuscule chance that the investigation might result in cases against U.S. personnel is sufficient to demand that the whole investigation be prevented. In turn, the Afghan government sought to defer the ICC investigation under the principle of complementarity, citing its own ongoing investigations and prosecutions of war criminals in an apparent attempt to maintain favor with the U.S. government. (Full disclosure: I helped as counsel to Afghan victims and civil society in litigation before the Court).
Afghanistan’s deferral request resulted in an automatic suspension of the investigation, pending a motion from the Office of the Prosecutor (OTP) to continue – although the OTP’s decision to defer the entire investigation on the basis of Afghanistan’s 18(2) request, rather than only deferring investigations against “those persons” identified in the government’s request, relies on a tenuous interpretation of the Statute to suspend more of its activities than necessary (or arguably permitted – see article 54(1) of the Statute). In any event, no motion by the OTP to continue the investigation appears to have been filed.
The basis for deferral of the Afghanistan investigation, however dubious it was before the Taliban seized Kabul, is even more so now with the Afghan government’s collapse and no real prospects of national prosecutions or investigations – a fact most recently noted in a filing before the Court. While Prosecutor Karim Khan is clearly contemplating next steps, particularly given the Court’s limited resources, time is no longer on Prosecutor Khan’s side.
The prospects of meaningful cooperation from the Afghan authorities were present when the OTP’s preliminary examination was first initiated and for a significant period of time thereafter. But these hopes were dashed by a number of OTP strategic missteps, including the failure to seize the moment when there was both a somewhat friendlier administration in the White House and an Afghan government unafraid to cooperate. The Taliban takeover of Afghanistan has presumably ended those prospects. In doing so, it has also heightened the immediate need to secure whatever evidence may have been collected on the ground for any viable investigation to be successful and for the protection of witnesses and sources referenced in those materials.
It is here that the new Prosecutor can remedy his predecessor’s mistakes by seizing the moment and acting immediately to secure all existing evidence. Prosecutor Khan must work within and outside the Court and leverage the diplomatic weight of his position to impress upon States and international organizations the immediate need to facilitate the identification and safe harbor of information that has been collected and is still in Afghanistan. And Prosecutor Khan can do so in part by using the Rome Statute’s powers under Part 9 to require cooperation by different States Parties in the collection and preservation of that information.
Indeed, Article 56 of the Rome Statute arguably mandates the Prosecutor to undertake these very steps or at minimum inform the Pre-Trial Chamber of the potential for lost evidence. That article expressly requires the Prosecutor to inform the Pre-Trial Chamber of any “unique opportunity” to “examine, collect or test evidence, which may not be available subsequently for the purposes of a trial.” Where the Prosecutor fails to request measures to ensure the protection of that evidence, the Chamber has the authority to “consult with the Prosecutor as to whether there is good reason for the Prosecutor’s failure to request the measures.” If the Chamber is unsatisfied with the Prosecutor’s explanation, it has the authority to then “take such measures on its own initiative.”
The Prosecutor’s notification obligation under article 56 is an important one. As noted by the Prosecutor in the Ongwen case “[t]he deployment of this provision is not just a tactical option in the hands of the Prosecution. Rather, article 56(1) establishes a duty on the Prosecutor to inform the Pre-Trial Chamber of the existence of facts which mean that evidence ‘may not be available subsequently for the purposes of a trial’.”
That obligation finds clear relevance in the situation of Afghanistan, where a belligerent party, adverse to human rights advocates, has gained power and threatens the destruction of valuable evidence. In the Situation in Darfur, Professor Antonio Cassese submitted an amicus brief upon invitation by the Pre-Trial Chamber on whether article 56 should be used. In that brief, Professor Cassese concluded that
This condition [of ongoing armed conflict] cannot but have a serious impact on the evidence of crimes potentially available in Darfur… Documents are destroyed. Sites that have been the object of attacks and devastation gradually deteriorate with the consequence that the marks of those attacks tend to disappear. Mass graves become more and more difficult to identify… Also, with the passage of time such documentary evidence runs the risk of being destroyed or deliberately altered.
These same risks that existed in Darfur in 2006 clearly exist today in Afghanistan – with the added risk that the entity currently in control of the territory on which the evidence is housed has every reason to actively seek out and destroy it.
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The Taliban’s overthrow of the Afghan government may force the international community to finally come to terms with how it intends to address the commission of international crimes in Afghanistan over the past 40 years. With the real prospects that information that is vital to accountability is at risk, we are at a threshold moment. How the international community acts now will likely dictate the viability of future justice mechanisms as they relate to Afghanistan.
Editor’s note: This article is written in the author’s personal capacity and does not reflect the opinions of any organization to which the author belongs.
Image: Kabul, AFGHANISTAN: Investigators search for evidence in and around the wreckage of a police bus at the site of a bomb blast in Kabul, 17 June 2007. A powerful bomb destroyed a police bus in the heart of the Afghan capital on 17 June, killing more than 35 people, police said, as the extremist Taliban movement claimed responsibility. (NICOLAS ASFOURI/AFP via Getty Images)