ICC’s chief prosecutor proposes to exclude US troops from ambit of Afghan war crimes probe

The decision by ICC chief prosecutor Karim Khan to exclude US forces from the investigation has invited widespread criticism, with some calling it an attempt at selective justice

September 28, 2021 by Peoples Dispatch
Photo: ICC

In a surprise move, the International Criminal Court (ICC) chief prosecutor Karim Khan in a statement on Monday, September 27, said that he is seeking permission to open an investigation into alleged human rights violations and war crimes in Afghanistan minus the involvement of US troops. The decision to exclude US forces from the investigation has invited widespread criticism, with some calling it an attempt at “selective justice.”     

According to Karim Khan, the focus of the investigation would be the Taliban and Islamic State of Khorasan Province (ISIS-K) and he plans to “deprioritize other aspects in this investigation.” The move to drop the investigation against the US troops has been justified citing ICC’s limited resources. He also claimed that such a focused investigation would enhance the chances of conviction.

The request has been submitted in front of the pre-trial chamber of the ICC under article 18 (2) of its statute. After gathering records for 15 years, the ICC opened an investigation into alleged war crimes in Afghanistan last year. However, it was put on hold following the claim made by the then Afghan government that it would open its own investigation into the alleged crimes.

Karim Khan claimed that following the Taliban takeover, a fair investigation into human rights violations by the Afghan government at present is no longer possible.  

Selective justice 

International law experts and activists have criticized the move to drop the investigation against the US troops. The vice-president of Canadians for Justice and Peace in the Middle East (CJPME), Michael Bueckert, in a tweet, called it “selective justice,” which will make the ICC “look like just a tool of empire.”   

Before ICC’s Appeals Chamber granted permission for investigation in March last year, a 2016 ICC report observed that “there is a reasonable basis to believe that war crimes of torture and other ill-treatment, by the US military forces deployed to Afghanistan and in secret detention facilities operated by Central Intelligence Agency, principally in 2003-04 period, although allegedly continuing in some cases until 2014.” 

People also called the move to investigate war crimes in Afghanistan minus the role of the US troops an ICC “apology” for its inability to make a real impact on those who commit human rights violations and war crimes. 

On Monday, Katherine Gallagher of Centre for Constitutional Rights (CCR), which fights the cases of the victims of the CIA’s illegal detention and torture in Afghanistan, in a press release, said the ICC’s move is a validation of the “playbook of delay and intimidation” used by the US. This sets an example for other violators to follow.

The CCR also said that if the decision to deprioritize US forces’ role in war crimes is allowed to stand, “the ICC – the last resort for those denied justice elsewhere – will have virtually ensured that victims of torture and other crimes committed by US officials will be denied redress.”    

The ICC had opened an investigation into alleged human rights violations and war crimes against the US troops in Afghanistan in June last year after the latter refused to constitute its investigation. In September, the Donald Trump administration imposed sanctions on then ICC chief prosecutor Fatou Bensouda and her assistant Phakisa Mochochoko, preventing them from going to the US and denying cooperation in the investigation.  

The US is not a party to the ICC, which was formed in 2002 to investigate allegations of war crimes, genocide and crimes against humanity in countries the officials have failed to do. 123 countries have ratified the treaty to establish ICC. 

Thousands of civilians have been killed and injured in attacks carried out by the US and other foreign troops in Afghanistan during their two-decade-long presence. They finally left Afghanistan last month. They have often been alleged of killing innocent civilians, carrying out torture and several other similar human rights violations in the name of fighting terrorism.