ICC prosecutor targets Taliban, Daesh, not US, in Afghan war crimes probe

The chief prosecutor of the International Criminal Court (ICC) is seeking to reopen investigations into war crimes and crimes against humanity in Afghanistan but says he would focus only on atrocities committed by the Taliban and Daesh-K (Khorasan). 

The probe initially covered offenses allegedly committed by Afghan government forces, the Taliban, American troops and US foreign intelligence operatives dating back to 2002.

But Prosecutor Karim Khan said on Monday he now plans to focus on crimes committed by the militant groups, adding that he will “deprioritise” other aspects of the investigation.

Judges at the global court authorised an investigation by  Khan's predecessor, Fatou Bensouda, in March last year. 

But the decision to investigate Americans led to the Trump administration slapping sanctions on Bensouda, who left office over the summer at the end of her nine-year term.

The investigation was deferred last year after Afghan authorities asked to take over the case. 

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.

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Why focus on the Taliban only?

“The gravity, scale and continuing nature of alleged crimes by the Taliban and Daesh-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 from my office, if we are to construct credible cases capable of being proved beyond reasonable doubt in the courtroom," Khan said.

He made specific mention of the August 26 attacks near Kabul's airport during the chaotic evacuations following the Taliban's takeover. 

The attacks killed dozens of Afghans and 13 US troops.

On his decision to no longer prioritise other aspects of the probe, including allegations of crimes by Americans, Khan gave a vague explanation. He said 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.”

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

The investigation originally also took aim at allegations of crimes by forces of the then-Afghan government.

Patricia Gossman, the associate director for Asia at Human Rights Watch, said it was a “really disturbing statement by the prosecutor to say the investigation will only prioritise some of the parties to the conflict — and in particular seemingly to ignore entirely the very serious allegations against US forces and CIA."

She said that “impunity for those crimes and others committed by the former Afghan government is one reason why we are where we are today in Afghanistan.”

The crimes including torture and extrajudicial killings by the US troops and Afghan forces are well documented. 

Announcing the decision last year to impose sanctions on Bensouda and one of her top aides for investigating the United States and its allies, then-US secretary of state Mike Pompeo said of the court, “We will not tolerate its illegitimate attempts to subject Americans to its jurisdiction.”

Khan had already put Afghanistan on notice that he was closely monitoring the country in the aftermath of the Taliban's seizure of power.

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