The principle of complementarity is a cornerstone of the International Criminal Court’s (“ICC”) framework. The doctrine, enshrined in Article 17 of the Rome Statute, strikes a balance between the overarching purpose “to put an end to impunity” on the one hand, and the primacy of national criminal jurisdictions on the other hand. Under the complementarity regime, the ICC may only assert jurisdiction when the state fails to act, including when its legal system is unwilling or unable to genuinely carry out proceedings. In the Afghan situation, shortly after the Appeals Chamber’s authorization of an investigation into alleged war crimes and crimes against humanity in March 2020, 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 primary responsibility to bring perpetrators of international crimes to justice. The complementarity analysis reveals that, besides the likely absence of proceedings against individuals who bear the greatest responsibility for the alleged crimes, the Afghan legal system remains unwilling and unable to genuinely carry out the requisite investigations and prosecutions. The government’s unwillingness and inability to conduct genuine proceedings is evinced through the flawed peace process with the Taliban, the Afghan Amnesty Law, 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.