06/25/2010 11:08 am ET Updated May 25, 2011

The ICC and Afghanistan: A Moment of Opportunity for Justice

A version of this article appeared as a Letter to the Editor in the International Herald Tribune/New York Times.

In today's International Herald Tribune, Candace Rondeaux and Nick Grono of the International Crisis Group argued that the International Criminal Court (ICC) should formalize their investigation of war crimes and crimes against humanity in Afghanistan, now that the Taliban's military chief Mullah Abdul Ghani Baradar has been arrested in Pakistan. I believe formalizing such an investigation at this particular stage would be catastrophic in consequence, and would ultimately harm both the development of Afghanistan and the standing and status of the International Criminal Court.

While I support bringing perpetrators of mass atrocities to justice in an effort to end worldwide impunity, there are two critical issues missing from the authors' analyses. First, the development of Afghan judicial and legal institutions should be seen as an opportunity for justice rather than a mere tragedy unfolding. And second, while the ICC is ideologically apolitical, independent, and led by a fierce Chief Prosecutor, Luis Moreno-Ocampo, the Court of last resort nonetheless operates with very limited capacity in a highly politically-charged world. Therefore, advocating for an official ICC investigation in Afghanistan, based largely on the capture of Baradar and an inexcusable amnesty law granting immunity to warlords and brutal extremists, fails to grasp the true mandate and resources of the ICC, coupled with the wave of complexities that would unquestionably follow such formalization.

The preliminary examination stage of the ICC is a critical moment for actors of all stripes in a nation to capitalize on global attention and advocate for the strengthening of domestic justice systems. Indeed, it is the prosecutorial strategy of the ICC to encourage genuine national proceedings as part of its' operating principle of positive complementarity -- ensuring respect for the international rule of law by creating an inter-dependent, mutually reinforcing international system of justice.

In the case of Afghanistan, and during the limited window of this preliminary examination period, coordinated pressure from both ends of the spectrum has the potential to catalyze massive positive change. Externally, and as part of their efforts to design and develop national judicial mechanisms with the Afghan people, the United States and its' NATO allies, along with the United Nations, should exert strong international pressure on the Karzai government to repeal the amnesty law and charge Baradar domestically. Internally, an organized grassroots coalition of key NGOs and civil society actors in the business of accountability and human rights should demand justice at the local level, ultimately creating a pressure chamber to spark action. I understand that the system of justice in Afghanistan is more than a tweak away from enforcing or respecting the rule of law, but this moment of ICC intervention should be viewed as a springboard to developing Afghan justice processes domestically, and not viewed as an opportunity to reach for the hand of justice internationally in The Hague.

Equally important, but perhaps least understood, are the inevitable political ramifications to formally opening a case in Afghanistan. Aside from the limited manpower and resources of the Court, if a case is officially opened, the Prosecutor must deal with both allegations against the Taliban and NATO troops. While the former yields no grief, the latter will surely cause a stir. With American and NATO forces in the thick of quelling an insurgency, the ICC would be yet another thorn in the side of international troops in Afghanistan. That is not to say the ICC doesn't belong -- it does -- but I fear a formal indictment of the country will do more harm than good, whereas capitalizing on the preliminary examination stage could push for the development and strengthening of domestic justice. It is national proceedings and internal justice that will produce the long-term benefit for Afghanistan and the Afghan people, and not an intensely difficult and futile investigation by the ICC prosecuting a single senior Taliban commander abroad.

The standing and status of the ICC is tested in a country like Afghanistan. Opening up a formal investigation will impeach international troops, including non-parties to the Rome Statute such as the United States. The preliminary investigation must be viewed as a strategic opportunity to catalyze domestic action, bring about international attention for the need to develop national judicial mechanisms, and strengthen relations with involved States who realize the tactical importance of this kind of intervention. We must recognize the pragmatic limits of the ICC's reach and seek alternative routes that leverage the Court's attention without over-extending its' resources -- towards the ultimate goal of bringing those responsible for mass atrocities to justice.

For more articles by Rahim Kanani, click here.