The International Criminal Court’s Afghan Dilemma: Complementarity and the Quest for Justice in Afghanistan

MEHDI J. HAKIMI*

The principle of complementarity is a cornerstone of the International Criminal Court’s (ICC) framework. Enshrined in Article 17 of the Rome Statute, the doctrine balances the overarching precept of ending impunity for atrocity crimes against the primacy of national criminal jurisdictions. Under the complementarity regime, the ICC may only assert jurisdiction when a state fails to act, including when its legal system is unwilling or unable to genuinely carry out proceedings.

Shortly after the Appeals Chamber of the ICC authorized an investigation in March 2020 of alleged war crimes and crimes against humanity in Afghanistan, the government of Afghanistan requested that the ICC’s Office of the Prosecutor (OTP) defer to its domestic proceedings. This Article argues that, contrary to Afghanistan’s contention, potential cases arising from the OTP’s investigation would be admissible before the ICC. Afghanistan has consistently neglected its responsibility to bring perpetrators of international crimes to justice. The recent ascendance of the Taliban into power is unlikely to change this status quo.

The complementarity analysis reveals that, besides the likely absence of proceedings against individuals who bear the greatest responsibility for the alleged crimes, authorities in the Afghan legal system remain unwilling and unable to genuinely carry out the requisite investigations and prosecutions. The state’s unwillingness and inability to conduct genuine proceedings are evinced through the Taliban’s return to power, the flawed Afghan peace process, the amnesty framework, and an array of other factors pertinent to the issue of admissibility. Considering the deeply ineffective domestic accountability mechanism, the ICC must step in and ensure that impunity is no longer guaranteed in Afghanistan.

* Executive Director of the Rule of Law Program and Lecturer in Law, Stanford Law School. I am grateful for valuable feedback from Zachary Kaufman. I also thank participants at the Association of American Law Schools’ 2021 annual conference, particularly contributors to the New Voices in International Human Rights panel. I also owe thanks to the thoughtful editors of the Columbia Journal of Transnational Law, especially Dana Ahdab, Molly Bodurtha, Adam Bryla, Marc Chien, Helen Catherine Darby, Matthew Dwelle, Adaeze Eze, David Giordano, Jordan Jarrett, Daniel Kim, Hye Jin Lee, Wisdom Onwuchekwa-Banogu, Grace Pyo, David Rubinstein, Vineet Surapaneni, and Tim Wang. All views and errors are solely my own.