The decision by the International Criminal Court’s pre-trial chamber to not authorize a full investigation into the “situation” in Afghanistan has served as a reminder that international criminal justice is political: it depends on political support and it shapes political debates about armed conflict, violence, and justice. Yet a closer look at the ICC prosecutor’s proposed scope of Afghanistan investigations demonstrates that not only the ICC’s decision but also the structures of international law itself shape which forms of violence in Afghanistan become visible in international courts: suicide bombings are readily classified as war crimes while airstrikes do not easily meet this threshold. International criminal law condemns low-tech violence and privileges the high-tech violence of the West.

In response to the 9/11 attacks, a military coalition led by the United States intervened in Afghanistan, transforming and exacerbating the ongoing conflict. According to the United Nations, at least 35,755 civilians were killed by the parties to the conflict between 2007 and 2018. Many more were injured, lost their livelihoods, were displaced or had to flee the country. The different parties to the conflict rely on distinct methods of violence: Taliban suicide attacks, use of improvised explosive devices (IEDs) and targeted assassinations have consistently accounted for the majority of civilian casualties. Yet US and NATO “night raids” as well as airstrikes that have killed and maimed thousands have also been the subject of international scrutiny as well as complaints from the Afghan government. Since 2006, the Office of the Prosecutor (OTP) of the ICC has engaged in preliminary investigations of the “situation” (as it is called in ICC parlance). On April 12th of this year, the pre-trial Chamber has refused to authorize a full investigation into the situation because “the current circumstances in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited.” This decision, issued shortly after a notable escalation of US hostility to the Court that included the revocation of an entry visa for chief prosecutor Fatou Bensouda, has been criticized as the capitulation of the ICC to political pressure. While there are other avenues of keeping the Afghanistan situation among the priorities of the court, such as a formal referral by an ICC member state, it is worth considering what role we are expecting the ICC to play in addressing violent conflict.

The ICC has thus far prosecuted war crimes and crimes against humanity committed in the context of a limited set of conflicts in African states, primarily The Democratic Republic of Congo, Uganda, and Darfur. The charges have focused on close-range and low-tech killings as well as sexual violence and the recruitment of child soldiers. This narrow focus raises questions about the ICC’s commitment to prosecuting war crimes, genocide, and crimes against humanity wherever and by whomever it may have been committed. The decision to not authorize a full investigation into Afghanistan highlights the Court’s institutional weakness: it is reliant on cooperation in the collection of evidence and apprehension of suspects. The US has never agreed to have its citizens judged by an international court, and this trend is not likely to be discontinued anytime soon.

What role can the ICC play in international public accounting for atrocities in a protracted asymmetrical conflict? It’s worth looking beyond the political context and the pre-trial chamber’s decision to not authorize a full investigation. The deep architecture of the rules of international law, including the ICC’s Rome Statute, also shapes which atrocities can be investigated, recognized, and condemned.

According to the Request filed on 20 November 2017, the OTP proposed to investigate violations by the Taliban and affiliated armed groups; primarily the use of suicide attacks against civilians, the indiscriminate use of improvised explosive devices (IEDs) and targeted killings as well as the persecution and targeting of humanitarian assistance missions. Additionally, , it proposed to investigate torture and sexual violence committed by the Afghan National Security Forces (ANSF), US armed forces, and members of the CIA.

The list of planned investigations shows a notable imbalance: the OTP proposed to investigate a good sample of Taliban violence that consistently claimed the lives of more than 50% of civilians killed in the conflict. On the side of the US and Afghan governmental forces, the focus of the investigation was confined to cases of torture not resulting in death. The infamous US “night raids” resulting in many civilian casualties, as well as airstrikes, were not part of the investigation requested by the OTP. This is not an oversight, but a symptom of the asymmetrical legality that privileges high-tech violence.

US airstrikes have a significant place in the matrix of violence in Afghanistan. According to UN reports, at least 2,954 Afghan civilians were killed in airstrikes, the vast majority of them in strikes ordered and executed by US forces. Few airstrikes with civilian casualties have been investigated by the US, and even fewer investigation reports have been released. While some investigations have found crew misconduct, only a few have recommended administrative sanctions against selected personnel. In comparison with UN and independent sources, US military investigations significantly undercount both the numbers of people killed and the numbers of civilians among them, often presuming that Afghan men would not be civilians. The violence of the airstrikes is compounded by undercounting civilian casualties and discounting civilian lives.

Civilian casualties from airstrikes generally fall into two categories. First, “collateral deaths” which regularly result from the excessive use of air power against a legitimate target, often in a built environment. Collateral deaths show the limits of precision when powerful bombs are being used and raise questions about the value of civilian lives in relationship to military objectives. Second, most civilian casualties result from misidentifications: aircrews mistook civilian gatherings and buildings for legitimate military targets. Referencing two of these cases that resulted in dozens of civilian casualties, the OTP determined that the available information “does not provide a reasonable basis to believe that the military forces intended the civilian population as such, or individual civilians not taking part in the hostilities, to be the object of the attack.”

The prosecutor refers explicitly to the 3 October 2015 attack on the MSF (Doctors Without Borders) clinic in Kunduz as an example of an airstrike that killed and injured civilians but did not “intentionally” target them. The strike on the clinic illustrates the mechanisms of US aerial violence in Afghanistan as well as international law’s structural blind spots. By all accounts, the MSF clinic was not meant to be attacked. Rather, as the US Military’s own investigation of the incident suggests, US forces planned to strike a nearby building that had been taken over by Taliban fighters. The ground troops could not see the intended target, much less adequately describe what it would look like from the sky. The aircrew dealt with technological and visual challenges of their own: due to technical failures, they did not have access to the “No Strike List” on which the MSF clinic was included. When they tried to plot the target coordinates transmitted by the ground troops, their systems pointed to an open field between the intended target and the MSF building. The aircrew picked the MSF building as the apparently closest approximation to both the coordinates and the verbal descriptions they had been given. Circling over the misidentified target, they observed people walking and sitting in the courtyard. We now know that these people were doctors, nurses, and patients enjoying the cool evening air after having been confined indoors due to ongoing fighting. Yet the crew saw them as insurgents and legitimate military targets. In radio communication, the people on the ground are repeatedly identified as “hostile” even though no distinctly “hostile action” was observed. They were seen at a place that had been wrongly identified with insurgent activity, and the imagined hostile characteristics of the place rubbed off on them. Yet at the request of the US military, the building was marked with two large MSF flags on the roof, and its GPS coordinates were included in the “No Strike List.” Still, the gunship crew shelled the building for an hour with 211 rounds of munitions while MSF staff frantically tried to inform US forces about the mistake. 42 people were killed, and another 37 people were injured. The crew did not intentionally target the doctors and patients. Instead, they convinced themselves that the people on the ground were insurgents. Their failure to identify civilians is part of a broader propensity of US and NATO forces in Afghanistan to see Afghan men as hostile and to not imagine the possibility that the people on the ground could be civilians. The technologies of aerial vision and violence amplify the effects of fears and stereotypes, of fantasies of Afghans as inherently hostile, and of reckless decision making.

Still, the ICC prosecutor is not alone in not regarding these air strikes as war crimes under the definition of the ICC statute. Amnesty International, which has investigated a wide range of attacks by Taliban and international forces, has not called any of the coalition air strikes a war crime. Under the current framing of international criminal law, suicide attacks readily appear as war crimes or crimes against humanity because they are necessarily intentional. The perpetrators see their victims. The high-tech violence of air strikes, in contrast, is shielded by the requirement of “intent” because the larger distance between the authors of the violence and its victims allows for claims of “errors.” These technologies enable both the attack and the legal excuse.

International and national courts have mostly refused to adjudicate airstrikes. In the few cases that were brought to trial, the courts declared the strikes either legal or beyond the court’s jurisdiction. The invisibility of high-tech violence is built into the architecture of international law. The scale of suffering brought about by the airstrikes does not guarantee that these strikes register on the scales of international criminal law. International law cannot be our only standard for judging military violence. Criminal trials cannot redress a complex conflict. Since institutions like the ICC shape which forms of violence become a matter of public concern, we need to not only address individual ICC judgments, but also the asymmetries and blind spots built into the structure of international criminal law.

Christiane Wilke is an Associate Professor in the Department of Law and Legal Studies at Carleton University, Ottawa. She received her PhD in Political Science from the New School for Social Research and is pursuing research at the intersection of state violence, law, technologies, visuality, and public memory.

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