The ICC's new Afghanistan investigation is a gift to the Taliban

The Court is investigating the Taliban and IS-K, but ignoring the crimes of the US and former Afghan government

epa06814048 Alleged Taliban fighters and an Afghan national army soldier (C) stand for a photograph during a three-day ceasefire on the second day of Eid al-Fitr, in the outskirt of Kabul, Afghanistan, 16 June 2018. Earlier in the month, President Ghani's government had announced a temporary ceasefire, starting on 12 June, to last until the end of the festival. The Taliban had followed suit a few days later and announced a three-day partial ceasefire during the festival.  EPA/JAWAD JALALI
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The last suspected war crime in Afghanistan before the US finished its involvement in what it calls “Afghanistan’s civil war” was committed not by Afghans, but by Americans.

On August 29, two days before the US withdrawal was completed, an American drone strike targeted the private residence of Zamarai Ahmadi, an Afghan aid worker who worked for a California-based NGO and was eligible for evacuation by the US military. A surveillance drone had earlier misidentified Ahmadi’s car as belonging to the terrorist group IS-K. The strike on his home killed Ahmadi, as well as nine other family members, including seven children. One of the people killed, Ahmad Naser, had previously worked as a translator for the US Army.

In the past 20 years, US drone strikes have killed hundreds – if not thousands – of innocent Afghan civilians. While lawyers could certainly make the case, based on the high rate of civilian casualties, that many of these strikes constitute “indiscriminate attacks”, and would therefore be war crimes, the reality is that none of them are likely to be investigated to the point of prosecution. The US has consistently argued that the casualties are unintentional and that each strike is based on intelligence, however faulty, rendering them collateral damage within the bounds of international humanitarian law.

Other suspected war crimes committed by the US in Afghanistan are less ambiguous. These are the numerous incidents of torture of Afghans allegedly carried out by the US military and Central Intelligence Agency in various, so-called black sites in Afghanistan and overseas.

Those who would see justice for the victims of this torture programme had a ray of hope when, in March, Fatou Bensouda, who was then chief prosecutor at the International Criminal Court, formally opened an investigation into crimes committed in Afghanistan over the past 20 years. The investigation would cover all parties to the conflict, including the US military and its western allies, the Afghan military, the Taliban militant group and the terrorist group IS-K.

The US has never signed the Rome Statute, the ICC’s founding treaty, and has never accepted the Court’s jurisdiction over its nationals. Ms Bensouda’s investigation was a watershed moment in international law because it essentially bulldozed over any notions Washington had of immunity.

According to the rules by which the ICC governs itself, a non-party state, in this case the US, may be investigated and, eventually, prosecuted if at least one of two conditions apply: first, that the state in question consents to the investigation, and second, if the crimes in question were committed within the territory of a state party to the Rome Statute.

Afghanistan signed the Rome Statute in 2003 under the transitional government of then president Hamid Karzai. At the time, neither the Afghan government nor the US, its main political and financial sponsor, anticipated the legal ramifications for themselves of such an act of solidarity with human rights. But from the moment the ink on that signature dried, everything that happened in Afghanistan was, in theory, fair game for the Court’s prosecution division.

Those who would see justice for victims of the US torture programme had a ray of hope

And yet, until Ms Bensouda’s investigation began this year, the prosecutors had achieved very little. Why?

Prosecutors and judges are only as strong as the political environments in which they operate allow them to be. And the international political environment is not yet a place where the rule of law reigns supreme. From the moment the US realised it was in legal jeopardy, it launched a vicious pressure campaign against ICC prosecutors in which it worked to obstruct them from obtaining evidence, drowned them in legal disputes and, ultimately, imposed sanctions against them personally.

Its accomplice in all of this was the Afghan government, first under Hamid Karzai and then Ashraf Ghani. As I have written previously, Kabul’s own attempts to stifle the ICC’s investigation were characterised by shoddy, often self-contradictory legal arguments. In September of last year, as Ms Bensouda looked set to announce the start of her investigation, the US administration under Donald Trump decided that blunt intimidation would be the better way forward; it sanctioned Ms Bensouda and Phakiso Mochochoko, the ICC’s director of jurisdiction.

The pressure the ICC was under was clear to its judges from the outset. In April 2019, the Court’s Pre-Trial Chamber blocked the investigation from starting on the grounds that it was “not in the interests of justice” – in other words, that because the investigation included the US, it was impractical and unlikely to reach a conclusion. It was only when, in March 2020, the Court’s Appeals Chamber reversed that decision did Ms Bensouda have the standing she needed to continue.

The entire story of the ICC’s involvement in Afghanistan is that of a struggle between practicality and principle. Now, Ms Bensouda’s term has ended, and the new Prosecutor, Karim Khan, is dealing with an entirely different Afghanistan: one in which the US has withdrawn, the previous Afghan government no longer exists, the Taliban rules and IS-K directs its attacks against the Taliban.

Mr Khan has made it clear that practicality is paramount, to the detriment of international justice. Last week, he announced that the investigation of Afghanistan would indeed continue, but would “deprioritise” crimes allegedly committed by the US and former Afghan government, and focus instead solely on the Taliban and IS-K.

The ultimate irony is that Mr Khan’s decision comes just as the pressure on the Court is relieved. In April, US President Joe Biden removed the sanctions on Ms Bensouda and other ICC officials. Nonetheless, Mr Khan wants to pursue justice only against those whom he believes are the most likely to face it. It is a validation of the long-standing allegation that the ICC gives impunity to superpowers.

But for Afghans, who have witnessed foreign powers running roughshod over their country with impunity for decades, the most destructive element of Mr Khan’s decision may be the exclusion of former Afghan forces from the investigation.

The Taliban government has made much hay of its supposed amnesty for those Afghans who fought against them in the previous administration. Most of the world is agreed that such a move is in the interests of peace, though few believe the Taliban will be true to their word, and evidence is already emerging of reprisals against former Afghan soldiers and police.

But for many Afghans from parts of the country that have long been under Taliban control, the thought of ignoring alleged war crimes they witnessed being committed by Afghan soldiers, whose ranks had their own corruption problem, is difficult to stomach. It will be even more agitating to see that the international community seeks to prosecute their leaders but not the other side. It will make the Taliban appear magnanimous and the ICC biased.

And rather than serve justice, the ICC could become a tool of propaganda for the Taliban, and a source of further alienation of Afghans from the international community.

Published: October 03, 2021, 12:28 PM