Afghanistan: Why is the US excluded from ICC probe?

The call by prosecutor Karim Khan to resume an International Criminal Court (ICC) probe into potential war crimes committed in Afghanistan is a development many human rights defenders are applauding after the Taliban takeover of the war-torn country.  

Until now the investigation covered crimes alleged to have been committed on the territory of Afghanistan since May 1, 2003, as well as other actions linked to the US-led "war on terror" that may have happened elsewhere since July 1, 2002.

Alleged perpetrators include the Taliban and other militant groups but also Afghan, American and international armed forces and the CIA for its renditions and so-called "black sites" — clandestine interrogation sites — in Lithuania, Romania and Poland.

Reopen — and close?

But Khan went further than seeking to reopen the investigation into "crimes allegedly committed by the Taliban and the Islamic State Khorasan Province (IS-K)" which had been deferred at the request of the former Afghan government.

He additionally stated that he would "deprioritize other aspects of this investigation" — the allegations against American and Afghan personnel — angering many.

The International Federation for Human Rights says the ICC "should not exclude groups of victims or crimes" within its jurisdiction. Raquel Vazquez Llorente, the organization's permanent representative to the ICC, has urged the prosecutor to "ensure that accountability in the investigation already opened is pursued without further delay." 

"Reverse the decision," demands Jamil Dakwar, director of the American Civil Liberties Union's (ACLU) Human Rights Program. The ACLU represents three men trying to hold the US government to account for what they say was their detention and torture in Afghanistan.

Katherine Gallagher, an attorney representing some victims, tweeted that she was stunned — both to learn that the "prosecutor is not investigating crimes against my clients" and that, after a decade of collaboration with the ICC office, she heard about that from a press release.  

Working with the US-based Center for Constitutional Rights, Gallagher represents three men detained in Guantanamo, and warns that "allowing powerful states to get away w[ith] multi-year, multi-continent torture against so many feeds impunity for all."

Bensouda braved US wrath

Khan's announcement seemed particularly odd for some, recalling how much trouble his predecessor Fatou Bensouda went through to get the investigation authorized in the first place, appealing an initial rejection by ICC judges, and then to maintain the inclusion of US troops in the probe.

Former US President Donald Trump verbally abused her and her staff and imposed sanctions on them but Bensouda didn't back down. President Joe Biden removed the sanctions in April. 

It's not clear what the precise impetus is for Khan to take such action at this time. "After these years of such battles over making sure the US forces were part of the equation," notes Patricia Grossman from Human Rights Watch, "now to just give that away, it's just really quite stunning."

Grossman believes the credibility of the court, already battling criticism for the high proportion of indictees from Africa, will further suffer. "People have seen this as an important institution to defend justice and this move undermines all of that," she told DW.

"It's a one-sided, selective view of who deserves justice, which is a terrible thing for the court to do. That selectivity is extremely dangerous, that some victims are preferable to others, that they deserve something better than others — that's just wrong and I was just shocked."

No more moral high ground 

Haroun Rahimi, an assistant professor of law at the American University of Afghanistan, currently a visiting researcher in Rome, agrees, saying those who accept that this was a "pragmatic choice" due to the lack of ICC resources "miss the point of what it means in terms of moral standing of the court, what it means in the eyes of the world."

Rahimi told DW that Khan's refocus on Muslim militants will be a "big victory" for the Taliban and other groups to use in the "us versus them" narrative, as well as for anyone else trying to undermine the institution.

"That's what infuriated me," he explained.

"[The ICC] was supposed to be holding the moral high ground on the crimes we agreed that no one should be able to commit and could face consequences if they do," he said. "The whole purpose is to reaffirm the common morality, the universal morality that underpins those values and that's going to be violated."

Attorneys and organizations representing victims are demanding a meeting with Khan to make the case to him that they deserve their days in court.