At the beginning of March, the Appeals Chamber of the International Criminal Court unanimously authorized the Prosecutor to begin an investigation into the situation in Afghanistan

The investigation into alleged war crimes and crimes against humanity is related to the armed conflict within Afghanistan since May 2003, as well as crimes that, though related to that conflict, were allegedly committed in the territory of other States Parties (from July 2002).

ICC rules of procedure require that investigations consider all parties involved in a situation. In the case of Afghanistan, that means that the actions not only of the Afghan government and the Taliban, but also the United States, and other involved parties and countries, such as Canada, may be part of the investigation.

Unsurprisingly, U.S. Officials are furious that the Court may one day prosecute American military officers. In a statement, US Secretary of State Michael Pompeo called the decision “a truly breathtaking action by an unaccountable political institution, masquerading as a legal body.” The short statement went on to say that it was “all the more reckless for this ruling to come just days after the United States signed a historic peace deal on Afghanistan.” Pompeo also accused the ICC of being a “vehicle for political vendettas.”

What about Canada?

For some time, there have been allegations that Canada knew that the detainees they were handing over to Afghan authorities would be tortured. Under the Rome Statute not only is torture a crime, but knowingly transferring individuals into circumstances where they would be tortured is also a crime. These crimes have also been incorporated in Canadian law.

The ICC is intended to be a “court of last resort.” In other words it should complement national legal systems, only prosecuting cases when states are not willing or able to do so.

Despite widespread publicity regarding detainee abuse, successive Canadian governments have failed to initiate a credible investigation into the actions of Canadian military and political leaders responsible for the abuses alleged to have taken place in Afghanistan.

What you can do

Write to Minister of National Defence Harjit Sajjan and Minister of Justice and Attorney General David Lametti and ask that Canada not only cooperate with the ICC investigation, but conduct a thorough, in depth, and long overdue investigation into Canadian actions in Afghanistan that violate international humanitarian law.

Further information

International Criminal Court: Afghanistan

Guantanamo detainees’ lawyer celebrates ICC probe into alleged U.S. war crimes: interview on CBC Radio’s As It Happens with Katherine Gallagher (March 5, 2020)

Brief on the Investigation of Canadian Nationals for War Crimes and Crimes Against Humanity in Afghanistan (submitted to The Prosecutor of the International Criminal Court by Craig Scott, Osgoode Hall Law School of York University, November 26, 2017)

How Canada failed Afghan detainees: Canada knowingly transferred detainees in Afghanistan to facilities where torture was rife (Peggy Mason and Omar Sabry, October 16, 2015)

Afghanistan Public Interest Investigation (Military Police Complaints Commission of Canada, 2007-2011)