The court’s prosecutor, Karim Khan, who has been on the job for just over three months, wrote in a statement that his office would focus exclusively on crimes committed by the Taliban and by the Islamic State Khorasan Province, or IS-K, the Islamic State group’s affiliate in Afghanistan.

A preliminary investigation of crimes committed in Afghanistan since the country joined the court in 2003 had been underway for more than a decade, before a full investigation was authorized and then suspended in favor of an Afghanistan-led process. That investigation included crimes committed by all parties to the conflict, marking the first time the ICC probed crimes committed by U.S. forces, which in Afghanistan include extrajudicial killings, drone strikes that killed an untold number of civilians, and torture.

Now, if a panel of ICC judges authorize the prosecutor’s request, the resumed investigation would “deprioritise other aspects of this investigation,” Khan said, an implicit reference to the U.S. and its allies.

The announcement dealt a blow to victims, human rights advocates, and those who had placed in the ICC their last hope to see the crimes committed by U.S. personnel and officials prosecuted in a court of law. While many Afghans welcomed the reopening of a case that they hope will preserve the international community’s scrutiny of the newly installed Taliban government, they warned that the decision would threaten the credibility of a court that has long faced questions about its ability to take on the world’s most powerful countries. 

“This just proves one more time to Afghans that international mechanisms do not value their life when foreigners are involved and international forces are involved,” Shaharzad Akbar, who chaired Afghanistan’s Independent Human Rights Commission until the Taliban took control of the country in August, told The Intercept. “This decision reinforces the perception that these institutions set up in the West and by the West are just instruments for the West’s political agenda.”

The ICC has historically operated with limited resources, with an annual budget of roughly $172 million paid for by its 123 members. In a world starved for justice and accountability, the ICC’s resource problem has at times become a political one, raising questions about how the court prioritizes which cases to tackle. In recent years, the ICC has opened inquiries into potential Russian crimes in Georgia and Ukraine and Israeli crimes in Palestine, and it has opened, and then shuttered, preliminary inquiries into acts committed by British troops in Iraq. All have faced significant opposition.

The United States, which is not an ICC member, has also long taken a hostile stance toward the court, opposing investigations into its allies, including Israel, and fiercely contesting the court’s jurisdiction over U.S. nationals. U.S. officials have put extensive pressure on the court, the Afghan government, and U.S. allies in an effort to derail any investigation of American crimes.

“This was clearly a political decision — there’s really no other way it can be interpreted. It gave the US, the UK and their allies a get out of jail free card,” Jennifer Gibson, an attorney focused on extrajudicial executions at the human rights group Reprieve, wrote in a statement to The Intercept in response to Khan’s announcement. “It’s almost as if the two countries wrote the script for him. He mentions the attack on Kabul Airport in the waning days of the withdrawal, but ignores the U.S. drone strike that killed a family of ten, including seven children, soon afterwards.”

A Doomed Investigation

The International Criminal Court, which is based in the Netherlands, began operating in 2002, just as the U.S.-led war on terror was ramping up. Afghanistan ratified the Rome Statute, the ICC’s founding treaty, in 2003, shortly after the U.S. defeated the Taliban and installed a transitional government. By that point, the country had been at war for decades, and many foreign and domestic parties had committed atrocities that could qualify as war crimes and crimes against humanity. A 10-year war with Soviet Russia had killed over 1 million Afghans and displaced millions more. A subsequent period of civil conflict between Afghan factions had killed hundreds of thousands more. Then in 1996 came the first Taliban government, which ruled over Afghanistan until the U.S. invasion in the aftermath of the 9/11 attacks.

In 2002, one month after the court began operating, the U.S. enacted the American Service-Members’ Protection Act, which sought to protect U.S. personnel from international prosecution. U.S. officials also pursued dozens of bilateral agreements to pressure other countries not to collaborate with the court.

“From the very beginning, they were trying to shield themselves from responsibility,” Raquel Vázquez Llorente, the International Federation for Human Rights’ permanent representative to the ICC, told The Intercept. “They were very scared that the court would bring their people to the Hague.”

In 2006, then-ICC prosecutor Fatou Bensouda opened a preliminary probe in Afghanistan, though the court would only have jurisdiction over crimes that had taken place since Afghanistan had ratified the Rome Statute. At the time, the court was facing pressure to investigate abuses beyond Africa, where all of the ICC’s early cases had taken place. Bensouda, a Gambian national, and Phakiso Mochochoko, another senior ICC official who is from Lesotho, were eager to change the narrative that the court was not willing to take on global superpowers and made clear they would look at conduct by all parties to the Afghan conflict, foreign powers included.

Under ICC rules, the court can open an investigation if a member country requests it, if the United Nations Security Council refers a case, or if it believes that one of the crimes that fall under its jurisdiction were committed within the territory of a member state or by nationals of a member state operating in another country. It was under that third category that the court claimed authority over the conduct of U.S. nationals in Afghanistan, as well as in Romania, Lithuania, and Poland, where the CIA operated black sites.

The prosecutors had hoped to find a receptive partner in the administration of President Barack Obama, particularly as the American public had widely condemned the war on terror tactics of his predecessor. But U.S. officials unequivocally warned the court that opposition to the investigation of American crimes was bipartisan. With political opposition from the strongest party to the conflict, the preliminary inquiry in Afghanistan dragged along for a decade. In 2017, with President Donald Trump newly in office, Bensouda finally moved to formally request the court’s permission to launch an official investigation. In 2019, the ICC’s pretrial chamber, the body tasked with authorizing a formal investigation, denied such authorization — an unprecedented decision that cited, among other things, the “political climate” surrounding the probe.

“We all read between the lines,” Katherine Gallagher, a senior staff attorney at the Center for Constitutional Rights who represents victims of U.S. torture, told The Intercept, noting that the statement clearly referenced “the political pressure that the Trump administration has put on the court.”

Trump’s national security adviser, John Bolton, had been fiercely opposed to the ICC since his days in the Bush administration, and he encouraged Trump to threaten ICC officials with sanctions and prosecution as well as to revoke Bensouda’s entry visa to the U.S. The prosecutor’s team denounced the scare tactics and pressed forward, projecting, outwardly at least, a continuing willingness to take on the U.S. The court’s investigation of U.S. acts had barely started, however, and political pressure on the ICC was threatening to thwart other aspects of the probe as well.

ICC prosecutors and representatives of victims successfully appealed the denial from pretrial chambers, and the ICC’s appeals chambers authorized a formal investigation in Afghanistan on March 5, 2020. In response, the Trump administration issued an executive order condemning the ICC and imposed sanctions on Bensouda and Mochochoko — the first time the U.S. had ever taken such action against officials of an international body.

The administration also stepped up its pressure on the Afghan government, which was eager to maintain U.S. support and made a last-minute request to testify before the ICC in opposition to the appeal. When that effort failed, former Secretary of State Mike Pompeo flew to Kabul; a day after his visit, the Afghan government petitioned to “defer” the ICC investigation in Afghanistan in order to allow a national investigation to take place instead. As a court of last resort, the ICC is  required to give precedence to national processes — but it’s unclear whether the Afghan government was actively pursuing one. (The deferral also meant a pause of ICC investigations into U.S. torture at CIA black sites across Eastern Europe, even though those were crimes that the Afghan government was not in a position to investigate.)

Akbar, the Afghanistan Independent Human Rights Commission chair, told The Intercept that she had tried to talk Afghan government officials out of effectively killing the ICC probe.

“In private conversations I would say to Afghan government officials, why are you guys going with the U.S.’s ways, especially after they have signed an agreement with the Taliban?” she said, referring to a peace agreement between the U.S. and the Taliban signed in Qatar in early 2020. “Withdraw your deferral, do something for your nation.”

Akbar kept advocating for Afghan officials to allow an ICC investigation until the last months before the Taliban takeover, including when a government delegation met with court officials in The Hague last May, around the same time as an IS-K attack at a Kabul school killed 90 people, most of them teenage girls. “This culture of impunity, it all feeds into each other, this lack of justice creates conditions and emboldens people to do these things,” Akbar said she told her Afghan government colleagues. “I said, ‘For God’s sake, look at what’s happening, let them investigate, please.’ But it was clear that they were under a lot of U.S. pressure and that that was a key factor in making that decision.”

The deferral essentially put a stop to the ICC investigation in Afghanistan before it could start. It also relieved ICC prosecutors of their pledge to push through with an investigation that faced powerful opposition without having to publicly capitulate to the U.S. When the administration of President Joe Biden lifted the sanctions on the ICC officials earlier this year, it did so with the tacit understanding that the court’s probe on U.S. crimes wouldn’t resume. The White House did not respond to a request for comment.

“We Cannot Delay This Forever”

In the ICC prosecutor’s statement, Khan cited the “gravity, scale and continuing nature of alleged crimes by the Taliban and the Islamic State,” as well as his office’s “limited resources,” as a reason to scale back the probe. While many human rights advocates condemned the decision, others said it was a pragmatic one that would allow the ICC to move forward with at least some parts of an investigation that U.S. pressure had already successfully derailed. The ICC prosecutor’s office did not respond to a series of questions by The Intercept.

On Friday, a group of Afghan victims filed a statement with the ICC in support for the reopening of the investigation. “The international community failed the Afghan people in letting the Taliban take over Afghanistan and by allowing impunity to reign for the past 15 years due to inactivity and unjustified delays by this Court in administering justice,” they wrote. “There is no further basis to wait and there is no reason to do so.”

Ghulam Sakhi, a researcher with Afghanistan Human Rights and Democracy Organization, an Afghan-based human rights group, told The Intercept that it would have been ideal for the ICC “to investigate crimes committed by all conflict parties in Afghanistan, including the Afghan government, as well as international military troops, which obviously includes the U.S.” He denounced superpowers’ pressure on the court as a “tragic aspect of international justice.”

But the narrower investigation is also important, he said, considering the Taliban’s recent return to power and the grisly attacks that IS-K has committed against civilians in recent years, including massacres at a hospital maternity ward and a suicide bombing that killed nearly 200 people outside the Kabul airport in August.

“We cannot delay this forever just because unfortunately, the U.S. cannot be encouraged to cooperate,” said Sakhi, whose group has facilitated the representation of victims before the ICC. “There was a fear that [the U.S.] could have derailed this entire Afghanistan investigation, which I think would have been to the detriment of the victims of conflict in Afghanistan. It’s far better if certain crimes are investigated, than if no crimes are investigated at all.”

Critics of the decision argued that deprioritizing U.S. and other foreign powers’ crimes undermines the court’s principle of impartiality and reveals a lack of understanding of the conditions that precipitated the collapse of the Afghan government in the first place.

“When you know the conflict, those abuses were so much part of where we are today, they were the kinds of things that fueled a lot of grievances that alienated people from the government,” Patricia Gossman, Human Rights Watch’s associate director for Asia, told The Intercept. “It’s very disappointing that the prosecutor would make a statement basically suggesting that only one side of the conflict is worthy of investigation.”

Liz Evenson, an associate director of HRW’s International Justice Program who focuses on the ICC, noted that Khan’s decision — one of his first official actions — reignites long-standing questions about how the court chooses to allocate its limited resources. “The work that the ICC does has to be meaningful,” she said. “For it to be meaningful it needs to resonate and relate to victims’ experiences, it needs to be perceived as independent, it needs to be perceived as impartial.”

U.S. Impunity

Before it was shelved, the ICC investigation into U.S. crimes in Afghanistan was expected to focus primarily on the torture program, which was much better documented than drone strikes and other crimes. Those would also fall under the ICC’s jurisdiction, but it’s unclear how closely the court was investigating them. Critics of the decision to scale back the probe have noted that by essentially enabling impunity for U.S. crimes, the court risks sending the message — to dictators, autocrats, and even other powerful democracies — that they may get away with them too.

Khan, a British lawyer, previously led a United Nations investigative team focused on crimes committed by the Islamic State in Iraq. In his announcement, he emphasized the U.N. has repeatedly warned that the “terrorist activities of the Islamic State constitute a global threat to international peace and security.”

Gallagher, the CCR attorney, was alarmed by that reference. Unlike war crimes and crimes against humanity, there is no clear definition of terrorism in international criminal law, and terrorism is not cited in the Rome Statute. Instead, she said, the reference reflected a war on terror mentality. “It is concerning to see the language of terrorism, which is a term that operates in the political sphere, come into a criminal court,” she said, particularly when the shift was announced in conjunction with impunity for U.S. crimes. “International law has been turned into a sword rather than a shield to protect civilians. … We see it when we look at autocrats and dictators around the world who label their political enemies as terrorists.”

Even as the ICC’s effort to reopen part of its Afghanistan investigation could lead to justice for some victims of the Taliban and IS-K, it is leaving countless others behind. It is also denying Americans an opportunity to see their own government held accountable for the crimes it committed in their name. While a series of public inquiries have shed light on many of the abuses the U.S. has carried out during its two-decade war on terror, there have been no significant criminal or civil cases against those responsible.

“This is as much about the U.S. as it is about Afghanistan,” said Akbar, the IHRC chair, who has called on the U.S. to take responsibility for its actions and initiate a process of reparations. “It’s about Afghan victims, but it’s also about the U.S. military in its deep and systematic problems. Americans who care about the U.S. should care about this.”

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Alice Speri – alice.speri@​theintercept.com

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