The Situation in Afghanistan, US Sanctions and the Historical Narratives Emerging from the ICC

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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 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.

The Virtues of Accuracy and Sincerity

According to Williams’ theory, a commitment to truthfulness entails a respect for the two basic virtues of truth, namely: (a) accuracy and (b) sincerity (see here). In brief, “accuracy” aims at finding out the truth and “sincerity” at telling it. The virtue of accuracy is manifested in objectivity, honesty and industry with which actors try to establish what is true or false. The virtue of sincerity, in their efforts to communicate what they believe to be true and, more generally, to be trustworthy speakers who do not mislead. In this context, Williams observes that asserting what one believes is not generally sufficient for sincerity, if what is asserted is selective and intended to mislead. Of course, this does not mean that all adjustment or reflective thought about what speakers should say is insincerity. However, generally, speakers should communicate what they believe to be true and, more generally, should seek not to mislead.

Williams offers various reasons for which governance institutions ought to respect the virtues of accuracy and sincerity. Firstly, all things being equal, sincerity is a good thing which should be pursued. Moreover, sincerity enables citizens to hold their governance institutions to account which, in turn, is valuable for accountability, legitimacy and against tyranny.

The search for truth, therefore, requires respect for the virtues of accuracy and sincerity. And while Williams delves into what this means in specific cases, this aspect will not be covered here (I expand further on this in my forthcoming book on Histories Written by International Criminal Courts and Tribunals: Developing a Responsible History Framework (TMC Asser Press / Springer)). Rather, the discussion will focus on cases where speakers, such as prosecutors, may be prevented from conducting accurate and sincere investigations because of external pressures. These external pressures may thus impact on the ability of prosecutors to be wholly trustworthy speakers. This would be the case, for instance, where States and/or organisations attempt to shield or exclude particular “sides” to a conflict from being investigated, leading to important exclusions in the search for truth (and the emerging narratives of the conflict). Such a situation arose in the context of the ICTY and the 1999 NATO bombings in the former Yugoslavia (see here).

The ICTY and NATO actions

In July 2000, the ICTY Prosecutor, Carla del Ponte, made public her decision not to initiate a full investigation into NATO’s conduct of the conflict on the basis of the recommendations of an internal report (see here). This report provided, inter alia, a general assessment of NATO’s bombing campaign as well as details of specific incidents. Relying heavily on public documents published by NATO and NATO States, the report recommended that:

[o]n the basis of the information reviewed, however, the committee is of the opinion that neither an in-depth investigation related to the bombing campaign as a whole nor investigations related to specific incidents are justified. In all cases, either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offences. (para. 90)

Del Ponte later explained that she did not indict NATO command because she understood the practical difficulties of investigating a military alliance that supported the ICTY. NATO’s cooperation would cease and “this would impact on other current investigations.” (see Rogers at 145-6)

Many commentators have pointed to considerable flaws in the report, sufficient to query whether it ought to have served as the basis for the Prosecutor’s decision not to investigate NATO action (see Cryer at 216). However, what is of particular importance here is the role that external pressure (the threat of non-cooperation from NATO) could have had on the Prosecutor’s decision not to investigate the organisation’s actions. The report indirectly referred to the fact that an investigation of NATO actions would have been unlikely to result in the acquisition of sufficient evidence and the ICTY Prosecutor subsequently explained that she had not investigated NATO, in part, because she feared that the organisation’s cooperation with the Tribunal would cease.

It is possible to argue, therefore, that such external pressure impacted on the Prosecutor’s ability to search for truth accurately and sincerely. The exclusion of one of the sides to a conflict on account of external pressure raises issues of sincerity. While the Prosecutor’s investigations into the other sides to the conflict in the former Yugoslavia may have been accurate enough, by excluding one of the sides from the investigation, the Prosecutor left out an important chunk of the truth. That has implications for justice and legitimacy. But it also has implications for the historical narratives emerging from the ICTY.  

Of course, while the ICTY Prosecutor had little say over such external pressures, she should have more clearly communicated what she believed to be true and explained how such external pressures had impacted on the accuracy and sincerity of her investigations. In particular, she could have more clearly acknowledged:

  • that the decision not to prosecute NATO actions was, in part, occasioned by the difficulties the Tribunal would doubtlessly have encountered had NATO States withdrawn financing and co-operation;
  • that the Prosecutor’s decision not to undertake a full investigation into the NATO actions due, in part, to difficulties in the acquisition of sufficient evidence did not amount to, and should not be construed as, an exoneration of such actions; and
  • the lack of a full investigation into the NATO actions due, in part, to external pressures was a factor that had to be taken into account when considering the totality of the historical narratives of the conflict emerging from the ICTY (and the absence of an investigation into NATO actions therein).

By doing this, it is submitted, the ICTY Prosecutor would have shown that, in relation to the search for truth, she was as a trustworthy speaker (in accordance with Williams’ understanding of this phrase), and she would have shown her commitment to sincerely communicating what she believed to be true.

The ICC Prosecutor’s Investigation and US Sanctions

This brings the discussion back to the situation in Afghanistan.

In relation to this situation, the ICC Prosecutor is perhaps facing more active and vocal pressure than did her counterpart at the ICTY. In one sense, this is not a bad thing because there may be no question as to the intentions of the US administration. The US wants to thwart any ICC investigation into the possible role of US forces for war crimes. If the US is successful in that aim – as it very likely will be – and, consequently, the ICC Prosecutor will have to drop this limb of her investigation, she should, at the very least, be prepared to be as open and sincere about that fact as possible.

In face of such external pressure, the ICC Prosecutor should be prepared to communicate what she believes to be true. She should be prepared to admit that the external pressure from the US resulted in the non-investigation (and exclusion) of one of the sides to the conflict which, in turn, impacted on the accuracy and sincerity of her search for truth about the conflict. This is particularly important if, for instance, the Prosecutor finds that she is able to investigate the Taliban and affiliated groups, but not, for instance, the US forces. In particular, she could acknowledge how such external pressures have led to an incomplete investigation of the conflict, on account of key exclusions. She should further acknowledge that the lack of an investigation into the possible involvement of US forces for war crimes due to external pressure was a factor that had to be taken into account when considering the totality of the historical narratives of the Afghan conflict emerging from the ICC.

Given the geopolitics at play, the ICC Prosecutor has little leverage over such external pressures impacting on her investigation. However, by making the above acknowledgments, she will to the extent possible reassert her commitment to an accurate and sincere search for truth about this conflict. As such, she will demonstrate that she may be counted on as a trustworthy speaker with respect to telling the truth about this conflict (again, in Williams’ sense of the phrase).

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Nicolas Boeglin says

June 24, 2020

Dear Professor Zammit Borda

Many thanks for this very valuable analysis.

Taking into consideration that the last ICC´s decision on Afghanistan took place last March 5 (see official link at ICC at: https://www.icc-cpi.int/afghanistan ), I wonder why the sanctions against ICC were adopted only last June 11th.

It seems hard to me to believe that US administration took so much time to adopt these sanctions against ICC, and I would be very grateful to you to help me to understand the real intentions behind the official justifications given by US officials.

Sincerely yours

Nicolas Boeglin

Aldo Zammit Borda says

June 24, 2020

Dear Nicolas,

Thanks for this question on timing.

Perhaps others may have better insights on why the US administration announced these far-reaching sanctions on 14 June, about 3 months after the ICC Appeals Chamber authorized the investigations.

It should be recalled, however, that these sanctions are just the latest in a series of increasingly antagonistic measures that the US has taken in response to the Appeals Chamber decision and the ICC Prosecutor’s determination to investigate. These included revoking ICC Prosecutor’s US visa in April 2020 (see: https://www.theguardian.com/law/2019/apr/05/us-revokes-visa-of-international-criminal-courts-top-prosecutor).

Of course, at the other end of the spectrum is the very recent joint statement drafted by Costa Rica and Switzerland reconfirming States Parties support for the ICC as an independent and impartial judicial institution, which was backed by 67 ICC States Parties (see https://www.reuters.com/article/us-warcrimes-afghanistan-trump/international-criminal-court-members-defend-it-in-face-of-us-sanctions-idUSKBN23U2XT)

Nicolas Boeglin says

June 25, 2020

Dear Professor Zammit Borda

Many thanks for your very kind answer. I suspect that - maybe ... - a coming polemical decision related to a US ally can explain this long period of time between March 5h and June 11th.

I share with you and all our colleagues you this press release of US State Secretary ´s declarations of June 2nd published in Israel:

https://www.haaretz.com/us-news/.premium-pompeo-u-s-to-target-corrupt-world-court-over-israel-u-s-war-crimes-probe-1.8889873

Sincerely yours

Nicolas Boeglin