UK war crimes allegations show the ICC can't run from its Afghanistan probe forever

British Special Forces soldiers are accused of unlawfully killing more than 50 Afghans during one six-month tour. AFP

Shocking allegations of British war crimes thought to have taken place in Afghanistan have cast a fresh light on the grisly history of the Afghan war, and the challenges ahead in the pursuit of justice for Afghan victims.

According to an investigation by the BBC, in 2010 and 2011 a unit of the British Special Forces carried out a series of raids in southern Afghanistan, in which at least 54 people were killed. The unit’s accounts of what happened were so suspicious they led some of its superiors to wonder whether the deceased were not, in fact, unarmed detainees or civilians, and whether their colleagues had not been pursuing a “deliberate policy” of cold-blooded murder.

But murder, when carried out by the hand of a soldier in the context of war, is not just murder. It is a war crime. The Rome Statute, the founding document of the International Criminal Court (ICC), allows for war crimes involving state signatories to the statute to be investigated by the ICC in the event that the state in question is unwilling or unable to carry out the investigation themselves.

Britain signed the Rome Statute in 1998. But none of its actions in Afghanistan or Iraq, where it has also been accused of war crimes, have ever been referred to the ICC because it, like other western countries involved in those wars, claims its armed forces can investigate themselves just fine. These new allegations, and a host of other developments surrounding war crimes in Afghanistan, may suggest otherwise.

In Britain, even the mere suggestion of war crimes must be referred to the Royal Military Police (RMP) for investigation. In this instance, they were not. Instead, the unit under suspicion was redeployed to Afghanistan a second time, during which it is accused of having unlawfully killed again. By 2013, the RMP had begun an investigation into what may have happened on the second deployment, but the Special Forces continued to withhold the evidence it had on the events of 2010 and 2011.

Over the next few years, the RMP investigated 600 alleged offences by British soldiers in Afghanistan. By 2019, the investigation ended and the Ministry of Defence said no evidence of criminality was ever found, even though RMP investigators have told the BBC they were obstructed by the military in the evidence-gathering process.

The problem is not isolated to Britain. Australian Special Forces recently saw off a four-year inquiry that found “credible evidence” they murdered 39 Afghans. To date, the only person who has been charged was the military lawyer who blew the whistle on the alleged crimes in the first place.

And of course, there is the US, whose military and intelligence agency stand accused of unlawfully killing, torturing, transporting or imprisoning thousands of people. The ICC has been investigating US actions in Afghanistan ever since it was authorised to do so by the court’s Appeals Chamber in 2019.

It is worth noting that the Appeals Chamber’s decision did not single out the US; it gave the Chief Prosecutor a sweeping mandate to investigate all war crimes on Afghan soil by multiple parties –the US, the Afghan government, the Taliban and ISIS – that have occurred since 2003. But since then, the US has used all manner of intimidation and lawfare to snuff out any ICC probe into its actions – often with the complicity of the former Afghan government.

These tactics, it seems, worked. The ICC’s new Chief Prosecutor, Karim Khan, announced in a press release in September, shortly after the fall of the Afghan government to the Taliban, that he would “deprioritise” alleged crimes committed by the US and Afghan National Security Forces and focus solely on crimes committed by the Taliban and ISIS. As I have written previously, this will only serve the new Taliban-run Afghan government’s argument that the international community is acting against Afghans’ interests.

It also suggests the door to justice for Afghan war crimes victims is closed. But it may not be.

Little has been heard of Mr Khan’s Afghanistan investigation since his deprioritisation announcement. It was paused last year on the request of the pre-Taliban Afghan government led by Ashraf Ghani, which asked the ICC to give it one year to show that it could, like its western allies, investigate its own soldiers itself. When that government fell, its request for a suspension was rendered moot.

But restarting the investigation is hardly in the interests of Mr Khan’s deprioritisation agenda. This is because it was suspended before any victims of western war crimes had a chance to litigate against Mr Khan’s deprioritisation decision. When it restarts, they might do so, and they might even win. The repeated efforts of western forces to dodge accountability for their actions would only help their claims.

Assisting Mr Khan’s delay is a tragicomedy of diplomatic errors involving his office, the UN and both the old and new Afghan governments. A pre-requisite for Mr Khan restarting his investigation is that he must inform Afghan authorities. But who exactly that is, in the ICC and UN’s eyes, is unclear. The Afghan embassy in the Hague, where the ICC is based, is loyal to Mr Ghani, and declined to speak on behalf of Kabul. When the UN forwarded Mr Khan’s request to the Afghan UN representative, they were given the same response. In their latest filing, ICC prosecutors asked the UN mission in Kabul to notify the authorities there, only for them to have passed the message back to the Afghan mission to the UN.

Eventually, however, Mr Khan will have to restart his investigation. And when he does, he will be unable to ignore the victims of any western crimes – let alone those allegedly carried out by the US. Their lawyers are already gearing up for the fight. According to one former employee in the ICC Office of the Prosecutor, who worked on the Afghanistan preliminary examination, at the time the court’s prosecutors assessed the evidence against non-US Nato members was too weak for investigation. Now, however, as British and Australian evidence shows, that is no longer the case.

And there is another potential curve ball Mr Khan may have to deal with. The previous Afghan government was under the patronage of the US. The new one is not. If the Taliban is investigated, it could, in its capacity as the new Afghan authority, write an official letter to the prosecutor accepting the ICC’s jurisdiction, request its own one-year deferral to give it time to investigate itself, and simultaneously make a referral for crimes committed by the West. In that instance, Mr Khan would probably be left with no choice: the tables would be turned, and his deprioritisation strategy would be out the window.