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2020 | Christiane Wilke - Beyond Law and Numbers: Civilian suffering and the ICC’s engagement with Afghanistan

This article reflects on the kind of justice that the International Criminal Court (ICC) investigation into the situation in Afghanistan can offer and examines the ICC engagement with Afghanistan through the lens of the United Nations Assistance Mission in Afghanistan Annual Report on the Protection of Civilians in Armed Conflict. It concludes that international criminal justice alone is an insufficient response to the violence committed by different parties to the conflict, as it fails to address the signature modality of violence employed by the US and NATO forces, namely airstrikes. Accordingly, the author contends that post-conflict justice should be imagined beyond the confines of international criminal law and, thus, do more than register violations of legality. 

The author considers that as long as war crime responsibility is attached to the finding of individual intent technologically mediated violence will consistently fall beneath the threshold of illegality. The ICC Prosecutor proposed investigation into the situation in Afghanistan occurs against the background of this complicated relationship between international law and aerial bombing. Hence, the author contends that the ICC involvement in Afghanistan, although groundbreaking in certain terms - notably for investigating some forms of violence committed by US forces and the CIA - perpetuates other trends. Specifically, it continues to deflect responsibility for civilian deaths caused by airstrikes and focuses on violence committed by non-state actors, transforming technological asymmetries in warfare in legal asymmetries.