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Afghanistan: ICC Prosecutor must seize opportunity to investigate all parties to the Afghan conflict

Responding to the decision earlier this week by the International Criminal Court (‘ICC’) Pre-Trial Chamber authorizing the Office of the Prosecutor (OTP) to resume investigations into war crimes and crimes against humanity committed in the Afghanistan armed conflict, Yamini Mishra, the regional director for South Asia at Amnesty International, said:

“The International Criminal Court’s decision this week restores some hope for long-awaited justice in Afghanistan, particularly for victims of crimes committed by the Taliban and their affiliated Haqqani Network. The ICC Prosecutor should seize this opportunity to urgently commence investigations into all parties to the conflict.

The International Criminal Court’s decision this week restores some hope for long-awaited justice in Afghanistan.

Yamini Mishra, the regional director for South Asia at Amnesty International

“Going forward the OTP also needs to urgently revise its selective approach to certain victims, whose cases have so far been deprioritised on the apparent basis that investigating powerful perpetrators would be more challenging or resource intensive to the ICC. Indeed, any supposed budgetary justifications are no longer valid as in the last year the OTP has received a significant influx of voluntary contributions and seconded personnel, some of which should be allocated to a thorough investigation in Afghanistan.

“The Office of the Prosecutor must reconsider its overtly selective approach which deprioritised investigations against powerful actors, including the Afghan National Security Forces (ANSF) and members of the Unites States military and CIA, to ensure justice to all victims of the Afghan conflict.”

The Office of the Prosecutor must reconsider its overtly selective approach which deprioritised investigations against powerful actors.

Yamini Mishra

Background

On 20 November 2017, the OTP had requested authorization to open an investigation into the Afghanistan situation, which was formally granted by the ICC Appeals Chamber on 5 March 2020 but was again deferred later in the month.

On 27 September 2021, the Prosecutor requested authorization from the Pre-Trial Chamber to resume its investigation under article 18(2) of the Rome Statute. In his statement, the Prosecutor ‘decided to focus (his) Office’s investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (IS-K) and to deprioritise other aspects of this investigation.’

On 5 October 2021, Amnesty International issued a public statement which provided that the ICC Prosecutor’s approach jeopardized his office’s legitimacy and urged for a full investigation in Afghanistan, into all parties to the conflict.

On 31 October 2022, the International Criminal Court (‘ICC’) Pre-Trial Chamber authorized the Prosecutor to resume an investigation into ‘all alleged crimes and actors’ identified by the OTP in its 2017 request to open an investigation.

Amnesty International has documented several cases of crimes under international law committed by Afghan National Forces, the United States military and the Taliban.