ICC criticized for excluding the US in Afghan war crimes probe as the tribunal wants to “deprioritize” a probe into alleged US war crimes in Afghanistan and focus instead on the ruling Taliban and the “Islamic State Khorasan.” Afghan human rights defenders have slammed the move and called it sheer biasness.
The new chief prosecutor of the International Criminal Court(ICC) said Monday that he wants to restart the war crimes probe into Afghanistan and shift the focus of investigations from US soldiers to the Taliban and the “Islamic State Khorasan” (IS-K).
Karim Khan, who was sworn in as the new chief prosecutor in June, said in a statement that he has filed an “expedited” order to re-commence the probe, citing concerns that Afghanistan could no longer carry on independent investigations under Taliban rule.
Khan said “there is no longer the prospect of genuine and effective domestic investigations” in the country and that’s why ICC wants to make a proceeding towards war crime probe in the wake of rising cases of brutality against innocent civilians.
📢 Statement of the Prosecutor of the #ICC, #KarimAAKhanQC, following the application for an expedited order under article 18(2) seeking authorisation to resume investigations in the Situation in #Afghanistan ⤵️https://t.co/MyRux17bZv
— Int'l Criminal Court (@IntlCrimCourt) September 27, 2021
ICC criticized by Afghan rights defenders over its partiality
Following the announcement, human rights campaigners denounced the ICC decision to deprioritize US investigations and warned the decision could grant the US “impunity for torture”. The ICC criticized by Afghan human rights defenders as the court of the last resort is practicing biasness by not putting the US activities in Afghanistan under spotlight.
Katherine Gallagher, a senior staff attorney at the Center for Constitutional Rights and a legal representative for victims of US torture at the ICC, said she was “stunned” to read about the decision in a press release.
In comments to DW, Gallagher warned the decision was “the wrong footing for the new Prosecutor to start his 9-year term”.
“The United States has refused to properly investigate its own torture legacy, and thus far, ICC Member States that furthered or hosted torture sites have also failed to do so,” Gallagher told DW.
“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,” she added.
Samira Hamidi, a South Asia campaigner with Amnesty International, called on ICC to revise its decision, particularly in relation to the US drone attack in Kabul which killed at least 10 civilians.
“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,” Hamidi wrote on Twitter.
Read more: What makes ICC investigation of US war crimes in Afghanistan highly sensitive
Why ICC is shying away from probing into alleged US war crimes?
The ICC’s decision to also probe US crimes related to conflict in Afghanistan has previously sparked a strong rebuke from American officials. By shying away from making probes into the US questionable activities of violence in Afghanistan, ICC criticized for deprioritizing the superpower and shifting towards the Taliban and ISIS. This decision will act as a stumbling block as Taliban’s return is the new reality in Afghanistan and international engagement in a positive manner is imperative for the new regime to ground its governance in a country that had been in the throes of war.
Last year, the US imposed economic sanctions on two top officials at the International Criminal Court (ICC), after revoking visas of judges probing alleged US war crimes in Afghanistan and threatening to arrest them in previous years.
While Khan stopped short of naming the US in his statement, the top prosecutor said he has requested to “deprioritize other aspects of this investigation,” seemingly referring to investigations of both Americans and former Afghan authorities.
Khan said his office will continue to preserve evidence of crimes, even in areas outside of its new priority focus.
“In relation to those aspects of the investigation that have not been prioritized, 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 said.
Read more: Op-ed: US has assaulted rule of law by sanctioning ICC officials over Afghan war crimes probe
The purpose of ICC probe in Afghanistan
According to Khan, if resumed, the probe will look at allegations of indiscriminate attacks on civilians, executions, persecution of women and girls, crimes against children and other crimes.
Khan cited a suicide attack near Kabul airport on August 26, as one of the reasons why IS-K should be a priority in the investigations. The bombing killed 60 Afghans and 13 US troops, with Islamic State claiming responsibility for the attack. Although ICC criticized for neglecting US alleged role Afghan war crimes, their shifting focus to ISIS is understandable as it might deter the militant group’s violence that is threatening peace in Afghanistan.
“The gravity, scale and continuing nature of alleged crimes by the Taliban and the Islamic State … demand focus and proper resources from my Office, if we are to construct credible cases capable of being proved beyond reasonable doubt in the courtroom,” Khan said.
The prosecutor made no mention of the faulty recent US drone attack, a recent investigation by New York Times reporters suggesting US claims that it was targeting an IS Bomb were unsubstantiated.
Read more: U.S. Forces May Have Committed War Crimes in Afghanistan, Prosecutor Says
ICC criticized by Afghan rights defenders as it resumes its probe
The ICC was set up in 2002 as a court of last resort which only interferes if alleged atrocities occur in countries that can not, or will not, bring the perpetrators to justice. This is known as the principle of complementarity.
The tribunal had already spent over a decade investigating alleged war crimes in Afghanistan before Khan’s predecessor, Fatou Bensouda, opened a full-fledged investigation in 2020.
The probe, which was approved by judges, was set to investigate offenses in Afghanistan since 2003, allegedly committed by Afghan government forces, the Taliban, American troops, and US foreign intelligence agents.
The investigation was deferred the same year after Afghan authorities asked to take over the case.
In his recent statement, Khan said that the Taliban takeover represents “a significant change of circumstances” in regards to Afghanistan’s deferral request. And this entails the tribunal to investigate the Afghan war crimes, but ICC is criticized by human rights watch for its biasness.
Read more: International Criminal Court should explain why it ‘chickened out’ from investigating US War Crimes in Afghanistan