ICC’s request to reopen an investigation into Afghanistan war crimes gets approved

Judges have approved a request by the International Criminal Court’s prosecutor to reopen an investigation into war crimes and crimes against humanity in Afghanistan, saying Afghan authorities are not carrying out meaningful probes into the alleged crimes.

The court announced the decision Monday, saying that authorities in Kabul have not established that “Afghanistan has investigated, or was investigating, in a manner that covers the full scope of the Prosecutor’s intended investigations and that would justify even a partial deferral of the court’s investigations.”

The decision comes just over a year after Prosecutor Karim Khan announced that he wanted to resume an ICC probe in Afghanistan because under the country’s new Taliban rulers there was “no longer the prospect of genuine and effective domestic investigations” in the country.

Judges at the global court authorized an investigation by Khan’s predecessor, Fatou Bensouda, in 2020 covering offenses allegedly committed by Afghan government forces, the Taliban, American troops and U.S. foreign intelligence operatives dating back to 2002. The United States are not a member of the court and do not recognize its jurisdiction.

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The decision to investigate Americans led to the Trump administration slapping sanctions on Bensouda, who has since left office. However, the probe was shelved after Afghan authorities asked to take over the case — known at the court as requesting deferral.

The ICC is a court of last resort, set up in 2002 to prosecute alleged atrocities in countries that cannot or will not bring perpetrators to justice — known as the principle of complementarity.

When Khan sought last year to reopen the court’s investigation, he said he now plans to focus on crimes committed by the Taliban and the Afghan affiliate of the Islamic State group, adding that he will “deprioritize” other aspects of the investigation.

On his decision to no longer prioritize other aspects of the probe, including allegations of crimes by Americans, Khan said last year that his 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.”

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Judges said in their decision Monday that their decision to authorize a resumption of the investigation covers all alleged crimes, meaning it could include allegations of crimes by U.S. personnel. However, it remains up to Khan to decide what allegations to investigate.

In 2016, before seeking authorization to open a full-scale investigation in Afghanistan, ICC prosecutors said that U.S. troops and the CIA may have tortured and mistreated people in detention facilities in Afghanistan, Poland, Romania and Lithuania.

Khan’s decision last year to no longer prioritize investigations into those allegations drew criticism from activists.

In response to Monday’s court decision, Patricia Gossman, the associate director for Asia at Human Rights Watch, said: “The International Criminal Court’s resumed investigation in Afghanistan should address serious crimes by all sides to the conflict, including U.S. forces, to bring justice even when the most powerful nations are involved.”