The international criminal court’s new prosecutor has asked the court to relaunch an inquiry into alleged crimes against humanity committed by the Taliban and supporters of Islamic State in Afghanistan since 2003.
The move by Karim Khan shows a determination to use international law to investigate not only past but also contemporary crimes against humanity. The Hague-based ICC has notified the Taliban via Afghanistan’s embassy in the Netherlands that it intends to resume an investigation.
A previous ICC inquiry was deferred in April 2020 following a request by the then Afghan government of Ashraf Ghani to be given time to gather evidence in cooperation with ICC lawyers.
Khan, a British QC who is three months into his nine-year tenure as ICC prosecutor, said “odious and criminal acts should stop immediately and investigations commence to vindicate the principles that were established 75 years ago at Nuremberg and to honour humanity’s basic responsibility to itself”.
His submission states there is no longer the prospect of a genuine and effective domestic investigation into crimes within Afghanistan. His proposal includes a plan to deprioritise but not drop any alleged war crimes committed by the US and the Afghan army since they are not ongoing.
“The current de facto control of the territory of Afghanistan by the Taliban, and its implications (including for law enforcement and judicial activity in Afghanistan), represents a fundamental change in circumstances necessitating the present application,” the submission states.
The prosecutor will face criticism for deprioritising the US from the investigation. But he states “the gravity, scale and continuing nature of the alleged crimes by the Taliban and the Islamic State which include attacks on civilians, targeted extrajudicial executions, persecution of women and girls, crimes against children 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”.
One of the criteria for deciding whether to resume the stalled inquiry turns on the extent to which domestic legal remedies are available.
In his submission, Khan says his investigation need not require the ICC to come to a view on either the de jure or de facto government in the country. It also says there is no institution inside or outside the country that in his view can legitimately seek any further deferral of the ICC inquiry.
One of the crimes likely to be investigated is the suicide bombing on 26 August at Kabul airport, which was claimed by Islamic State in Khorasan Province.
Last year, ICC judges granted a prosecution request to open a full investigation into Afghanistan for alleged war crimes committed after 2003, the date Afghanistan joined the ICC. The prosecutor was turned down initially by a lower chamber who believed an investigation would not be “in the interest of justice” because there was so little chance of cooperation by the parties.
However, as soon as the prosecutor eventually persuaded the relevant ICC panel, the Afghan government in April 2020 intervened by submitting a deferral request to pause the case, arguing that some of the crimes were best investigated domestically.
In his submission, Karim states the article that gave the Afghan government a right to request deferral “was not intended to create an impunity gap, nor to waste the ‘golden hour’ once the conditions for opening an investigation have been met – especially where it appears that article 5 crimes may continue to be committed, as in this situation”.
Article 5 crimes include crimes against humanity, war crimes and genocide.
He points out that “credible reports suggest that the Taliban have released thousands of prisoners allegedly linked to [al-Qaida] and IS terror groups, from Bagram airbase detention facilities. This action does not support the notion that the Taliban will genuinely investigate article 5 crimes, now, or in the future.”
The Coalition for Genocide Response welcomed the announcement, saying that recent months have seen serious risks of atrocity crimes, including of genocide against the Hazara community.
It added: “The ICC’s mandate to prosecute high-level perpetrators where states remain unable or unwilling is one that should be applied consistently, and without fear or favour, as such it must not neglect the crimes of other alleged perpetrators in the region including nationals of non states parties in Afghanistan at the relevant time.”
Prioritising the crimes of certain actors, and deprioritising others, enables the court to investigate developing crimes without getting bogged down in a dispute about whoever else might have committed crimes in the jurisdiction.
In 2015 the ICC was unable to investigate IS’s actions in Syria since a referral would have had to come via the UN security council. A demand would have then arisen for the ICC also to investigate the actions of the forces loyal to President Bashar al-Assad, something the Russians would have blocked using their veto on the security council.