By Janet Sankale and Mary Wasike
ICC Prosecutor Karim Khan’s announcement that he was seeking to resume the court’s investigation into the situation in Afghanistan, with a special focus on the Taliban and Islamic State, while “deprioritising” questions about the actions of foreign forces, has provoked mixed reactions.
The US welcomed the development. Although not mentioned by name in the Prosecutor’s statement, it is one of the parties that would have been targeted in the initial investigation. However, human rights defenders and advocates of justice for victims were not impressed.
“We’re deeply concerned about the current human rights situation in Afghanistan, and that also includes allegations of atrocities, and certainly welcome efforts to ensure accountability,” said Jalina Porter, the State Department’s principal deputy spokesperson, while responding to journalists’ question during a press briefing.
“We’re pleased to see that the ICC prioritised its resources to focus on the greatest of allegations and atrocity crimes. We have also long objected to the ICC’s attempt to assert jurisdiction over nationals of non-state parties such as the United States absent the consent of the state or a UN Security Council referral. And that objection remains unchanged,” she added when pressed further to respond specifically to the fact that the forces of the US and Afghan government allies would not be the subject of Khan’s investigation, and whether the American authorities had make any representations to the ICC.
But the opinion of Katherine Gallagher, a senior staff attorney at the Centre for Constitutional Rights and a legal representative for victims at the ICC, who described herself as “legal representative for victims of US torture”, was quite different.
She said on Twitter that she was “stunned”. She was later quoted by Deutsche Welle as describing the decision as “…the wrong footing for the new Prosecutor to start his nine-year term”.
“If the prosecutor is indeed shuttering the US dimension of the Afghanistan situation, that sends a message that delay tactics and bullying the ICC yields result: former US officials and contractors will continue to enjoy impunity, and the message will be understood by other war criminals that the US playbook works.”
Samira Hamidi, an Amnesty International South Asia campaigner, echoed her sentiments. “Prosecutor has decided to investigate the Taliban & IS-K violations but not the US. Looking at last US drone strike in Kabul that resulted in killing of innocent civilians including 11 children, ICC needs to revisit this decision and hold the US accountable too,” she said on Twitter.
Horia Mosadiq, the executive director of Conflict Analysis Network, who has for many years been helping victims to support the ICC probe, did not mince her words, calling the announcement “an insult to thousands of other victims of crimes by Afghan government forces and US and NATO forces”.
In an opinion piece published by Amnesty International last August, Mosadiq had said the ICC’s long investigations in Afghanistan, spanning over 15 years, and the lack of action to curb the perpetrators “…have undermined the court’s credibility in the eyes of millions of victims of war crimes across the world, particularly in Afghanistan”. She had urged the Prosecutor to open an investigation “immediately”.
According to Khan’s statement issued on September 27, 2021, he had filed an application before Pre-Trial Chamber II of the International Criminal Court, asking for expedited orders authorising his office to resume its investigation in the situation in Afghanistan.
On March 5, 2020, the ICC’s Appeals Chamber authorised the Office of the Prosecutor to investigate alleged atrocity crimes committed within the context of the Afghanistan situation since July 1, 2002. However, the Prosecutor put off the investigation after the government of Afghanistan, then headed by Ashraf Ghani, asked to be allowed to take over the cases under the principle of complementarity.
Under the Rome statute, this means the court only interferes if reported atrocities occur in countries that cannot, or will not, bring the perpetrators to justice.
Khan explained that his application had been prompted by recent developments in Afghanistan after Ghani was deposed and fled the country in August 2021 and the Taliban replaced the national authorities. “There is no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan,” he said. Article 5 involves the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.
He further stated that the gravity, scale, and continuing nature of alleged crimes by the Taliban and the Islamic State – Khorasan Province (“IS-K”), which include allegations of indiscriminate attacks on civilians, targeted extrajudicial executions, persecution of women and girls, crimes against children, and other crimes affecting the civilian population at large, demand focus and proper resources if his office is to construct credible cases “capable of being proved beyond a reasonable doubt in the courtroom”.
“In relation to those aspects of the investigation that have not been prioritised, my office will remain alive to its evidence preservation responsibilities, to the extent they arise, and promote accountability efforts within the framework of the principle of complementarity,” Khan stated, perhaps acknowledging that his decision to narrow the Afghan investigation might not be well received.
In her application, former ICC Prosecutor Fatou Bensouda had asked the ICC to allow her office to investigate the US armed forces and CIA for war crimes during their operations in Afghanistan. They were alleged to have tortured and mistreated people in detention facilities in Afghanistan, Poland, Romania, and Lithuania.
This outraged the American officials and led the administration of former President Donald Trump to impose sanctions, including visa bans, on Bensouda and other ICC staff.
Khan specifically mentioned the attacks of August 26, 2021, near Hamid Karzai International Airport in Kabul, Afghanistan, that killed about 100 Afghanis and 13 US military personnel. The Islamic State in Khorasan Province claimed responsibility for the attack.
In August, during the chaos that followed the withdrawal of US troops from Afghanistan and the ascension to power of the Taliban, Khan issued a statement saying he was closely monitoring the developments and that he was concerned about reports of escalating violence in the country.
“I remain committed to deploying the appropriate and available resources at my disposal to ensure independent and impartial investigations. Victims and survivors in Afghanistan deserve no less,” the Prosecutor said, referring to his August statement.
If approved, the investigation will face an uphill task gathering evidence as the Taliban rulers are not likely to cooperate with the court.