Afghanistan Analysts Network – English

Rights and Freedoms

Creating a Hierarchy of Victims? ICC may drop investigations into US forces to focus on Taleban and ISKP

Kate Clark 18 min

The International Criminal Court’s Chief Prosecutor, Karim A A Khan, has asked the judges of the ICC’s Pre-Trial Chamber to authorise a resumption of investigations into alleged “atrocity crimes” committed in the context of the Afghan conflict, but only those ascribed to the Taleban and Islamic State in Khorasan Province (ISKP). As for crimes perpetrated by other actors in the conflict, he wants to “deprioritise” them. Khan names no names, but if his request is authorised, this would put the United States military and CIA, as well as former Afghan government forces, beyond ICC justice at least for the foreseeable future. Khan’s request is politically controversial, reports Kate Clark, and raises uncomfortable questions for the Court and its reputation, as well as the limits of its ability to provide justice for victims.

A Taleban fighter stands in the wreckage of a CIA base in Deh Sabz district just north of Kabul, where the agency’s notorious Salt Pit detention facility was housed. It is where Afghan Gul Rahman froze to death in 2002. Photo: Amir Querishi/ AFP, 6 September 2021

Karim Khan’s request to the judges of the ICC’s Pre-Trial Chamber to focus exclusively on the Taleban and ISKP (which he refers to as IS-K) and, by implication, drop investigations into potential US war crimes was a bombshell. (Read his statement here or in the annex to this report).

I am cognizant of the limited resources available to my Office relative to the scale and nature of crimes within the jurisdiction of the Court that are being or have been committed in various parts of the world. I have therefore decided to focus my 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.

Khan’s predecessor as ICC Chief Prosecutor, Fatou Bensouda, had wanted to investigate not only the Taleban and ISKP, but also US military forces and the CIA, and the forces of the former Afghan government, especially the NDS. [1]Bensouda had also named the ‘Haqqani Network’, which she describes as “affiliated” to the Taleban, as also worthy of investigation. Khan did not mention it by name in his statement. AAN and … Continue reading Khan nowhere referred explicitly to either the US or former Afghan government forces, just to “other aspects of the investigation.” Implicit in his argument, however, was that the Taleban and ISKP’s alleged war crimes were graver and therefore worthier of investigation:

The gravity, scale and continuing nature of alleged crimes by the Taliban and the Islamic State, which include allegations of indiscriminate attacks on civilians, targeted extrajudicial executions, persecution of women and girls, crimes against children and other crimes affecting the civilian population at large, demand focus and proper resources from my Office, if we are to construct credible cases capable of being proved beyond reasonable doubt in the courtroom. 

The ICC investigation was authorised in March 2020, but it had been held up by a deferral request by the then Afghan government to give them time to demonstrate that they could and were investigating war crimes themselves. If victims can find justice in the domestic courts, because of the ICC principle of ‘complementarity’, that would mean the Court should not pursue an investigation itself. Khan states that, since the Taleban capture of power on 15 August, “adequate and effective proceedings in Afghanistan, carried out by State authorities… are not… available in Afghanistan at this time” and therefore the Court has to act.

This assertion by the former Afghan government that they were investigating and prosecuting war crimes was always highly questionable. As AAN has reported, the former government had done everything to stymie an ICC investigation. It changed laws, ratified statutes and set up new bodies and institutions, but did very little actual war crime investigating or convicting (see previous reports for details here and here. As to prosecuting alleged US perpetrators, Kabul’s hands were always tied anyway by a clause in its Bilateral Security Agreement with the US which gave US courts the right to try any American national suspected of a crime and specifically banned the Afghan state from handing over any US citizen to its own or a foreign court (AAN analysis here).

The former Afghan government sent two packages of information to the ICC after March 2020 and the Court had been close to concluding its consideration of the material. AAN understands that there was nothing in the material to justify Kabul’s assertion that it was seriously dealing with war crimes through the domestic courts, but the material did require a lot of translation – possibly the aim was to slow the Court down. Then, on 15 August, the Afghan government collapsed and the Taleban took power. According to AAN sources, after that, the Office of the Prosecutor contacted the Afghan embassy in the Netherlands to ask if the Kabul authorities were still able to investigate war crimes or not. The embassy reportedly said no because the relevant mechanisms and institutions had collapsed. So the ball was then back in the Prosecutor’s court. Khan could have requested the Pre-Trial Chamber to authorise the resumption or postponement of the investigation. Nobody was expecting him to narrow the focus of the investigation as he has done.

Before scrutinising Khan’s action further, it is worth looking at what the Office of the Prosecutor had previously ascribed to the various parties to the Afghan conflict, as giving grounds for investigating crimes against humanity and war crimes.

What are the allegations against the various parties to the conflict?

Khan’s predecessor, Fatou Bensouda, in her 2016 Preliminary Examination Report (AAN analysis here), had detailed the various alleged perpetrators, assessed the gravity and scale of the crimes ascribed to them, and whether there was a possibility of recourse for victims in domestic courts. This report formed the basis of her request to the judges of the Pre-Trial Chamber in 2017 to authorise a formal investigation into the ‘Afghanistan situation’.

Bensouda found there was “a reasonable basis” to believe that the Taleban and Haqqani network had committed war crimes  – murder, intentionally directing attacks against the civilian population, humanitarian personnel and protected objects, conscripting children, and killing or wounding treacherously a combatant adversary – all of which, it said, “were committed on a large scale and as part of a plan or policy”) and crimes against humanity (murder; imprisonment or other severe deprivation of physical liberty and persecution against any identifiable group or collectivity on political grounds and on gender grounds, all “allegedly committed as part of a widespread and/or systematic attack…” (For the full quote, see paragraphs 206 and 207 of the report.)

She also found reasonable grounds for investigating the CIA and US military forces, that during the interrogations of detainees and in conduct supporting those interrogations, they:

… resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape… Specifically:

Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.

Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008.[2]These countries were member states of the ICC at an earlier date than Afghanistan, so the starting date for war crimes to be investigated is also, necessarily, earlier. The majority of the abuses are alleged to have occurred in 2003-2004.

Finally, the Preliminary Examination also found grounds to investigate the forces of the former government, primarily the NDS, for:

…the war crimes of torture and cruel treatment, outrages upon personal dignity pursuant to article, and sexual violence. It named the Afghan intelligence agency, the National Directorate of Security (NDS), the Afghan National Police, Afghan National Army, Afghan National Border Police and the Afghan Local Police as alleged perpetrators and said 35 to 50 per cent of all conflict-related detainees “may be subjected to torture,” carried out in a “state of total impunity.”

Since then, the ISKP has also established itself as meriting investigation by the ICC by attacks on purely civilian objects, including schools, sports clubs and election facilities, which have caused mass casualties. (See Bensouda’s request to investigate the ‘Afghanistan situation’ made on 20 November 2017, in which she said the ISKP was “held responsible (or claimed responsibility) for a number of attacks against civilians in Kabul as well in Nangarhar province.” [3]Bensouda also said her office “should be permitted to expand or modify its investigation” with respect to groups, people and alleged acts “so long as the cases brought forward for prosecution … Continue reading

Issues raised by singling out of two parties to the Afghan conflict for investigation

Multiple questions are prompted by Khan’s stated rationale for singling out just two parties to the Afghan conflict for investigation, while deprioritising the others. Dropping an investigation into the potential atrocity crimes ascribed to US forces is especially contentious given how Washington has pressurised the ICC to drop any cases against its citizens; there were excoriating attacks by the Trump presidency (AAN analysis here) which culminated in US sanctions imposed on Bensouda and other ICC staff in December 2020 (see Human Rights Watch reporting here).

Questions raised by Khan’s statement include:

  • Are alleged US crimes perpetrated in the Afghan context actually lesser in terms of gravity and scale than those perpetrated by the Taleban or ISKP?
  • Are alleged victims of US crimes any likelier to see justice in domestic courts than victims of the Taleban and ISKP?
  • Is it more resource-efficient to concentrate on the Taleban and the ISKP than on US forces or former government forces?
  • Should resources be allowed to determine which war crimes are prosecuted by the International Criminal Court (if indeed resources are the only reason for this decision)?

The gravity of the alleged crimes

The Taleban’s alleged crimes are certainly more varied in nature, have been perpetrated over a longer time spell and, as the Prosecutor says, are “continuing.” The ISKP’s alleged crimes, while fewer in absolute numbers – it is a younger group – are certainly grave. They include the deliberate murder of civilians in mass attacks, and the targeting of Shia Muslims. The pace of ISKP attacks has ebbed, but not stopped; on 26 August, it claimed responsibility for an attack at Kabul airport on August, which killed 170 people (AAN reporting here).

The US, meanwhile, allegedly perpetrated torture in multiple countries, four of which would come under the purview of the ICC in relation to the Afghan context (Afghanistan itself, Poland, Romania and Lithuania). Most of the US’s alleged crimes date from 2003-2004. However, the torture was authorised from the very top of the United State’s democratically-elected government, which, to a lay person at least, makes them appear particularly grave – and arguably suitable for ICC investigation in which individual command responsibility is the ultimate target of the court.

Khan’s description of Taleban and ISKP crimes as continuing could justify sequencing, if resources are limited, that is, dealing with the Taleban first as they are now in power. Investigating their alleged war crimes might act as a deterrent now. The argument would be that investigating US crimes can wait as there are no new victims of its now defunct state-authorised torture programme; similarly, investigations into the former Afghan government’s use of torture could also wait. The concern would be that justice delayed would, in effect, be justice denied. Prospects of obtaining evidence and witnesses would inevitably degrade over time. Moreover, without the deterrent of a ICC investigation, the risk would remain of a future US administration again arguing that the threats against it were so exceptional as to justify torture or other breaches of International Humanitarian Law.

Would alleged war crimes be prosecuted in domestic courts?

As to whether allegations of war crimes or crimes against humanity would be dealt with in domestic courts, the Prosecutor is correct to say that the Taleban are unlikely to prosecute their own. Taleban action against the ISKP and former government officials can be expected, but it is debateable whether that would be through their courts, which are even further from reaching international fair trial standards than the previous government’s, or as summary executions or punishment beatings. Reprisal killings of members of the former Afghan security services have been alleged by UNAMA and of members of ISKP and other Salafists in media reporting, see for example, here and here.

While Khan says that the court would continue to “promote accountability efforts within the framework of the principle of complementarity,” it is difficult to imagine US domestic courts prosecuting crimes allegedly perpetrated by US citizens. Successive US governments have decided against prosecuting those who ordered state forces’ use of torture and the CIA’s secret renditions programme. President George Bush, himself, authorised the programme and although President Obama banned torture as soon as he took office in 2009, his administration decided not to prosecute:

We tortured some folks. You know, it is important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots.

President Trump supported the expansion of the ‘war on terror’ detention camp at Guantanamo and spoke in favour of the use of torture, including waterboarding (see AAN reporting here).

The previous ICC Prosecutor highlighted the dearth of US accountability in her 2016 Preliminary Examination Report (paragraph 221). She pointed out, for example, that the scope of the US Department of Justice’s preliminary review (2009 to June) of allegations of CIA abuse of detainees “appears to have been limited to investigating whether any unauthorised interrogation techniques were used by CIA interrogators, and if so, whether such conduct could constitute violations of any applicable criminal statutes” (emphasis added). In other words, there had been no US criminal investigation into the use of authorised torture techniques. Bensouda also quoted the US Attorney General: “…the Department of Justice (DOJ) will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”

The only US criminal investigations were of two cases where detainees had died in CIA custody, but these were dropped because, in the words of the  Attorney-General, “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.” One of those cases related to Gul Rahman, an Afghan who died of hypothermia after being left semi-naked on a bare concrete floor in the CIA Salt Pit black site near Kabul in November 2002. The US never informed Gul Rahman’s family of his death. Nor did they return his body. (In other words, this was also a forced disappearance, itself a war crime.)

The manner in which those responsible for Gul Rahman’s death were treated was testament to the unwillingness of the US authorities to punish alleged perpetrators, even with reprimands or demotions. According to a 2014 Senate inquiry into the CIA renditions programme, “just four months after the death of Gul Rahman [in March 2003], the CIA Station in Country recommended that [redacted] CIA officer receive a “cash award” of $2,500 for his “consistently superior work.” The manager of the detention side stayed in position and “was formally certified as a CIA interrogator in April 2003 after the practical portion of his training requirement was waived because of his past experience with interrogations” at the site.

(For more on attempts by survivors and families of alleged victims of CIA torture to get justice, including compensation, see this AAN report.)

The question of resources and ease of investigations

Alleged crimes committed by the CIA and US military are exceptionally well-documented through investigations by human rights groups, the media and US government bodies. They include: the 2014 US Senate Intelligence Committee into the CIA’s rendition and torture programme, previously referred to (read AAN analysis here); the 2008 Committee on Armed Services, United States Senate” Inquiry into the Treatment of Detainees in U.S. Custody”, [4]Earlier official US reports into the use of torture were listed in 2008 by the International Center for Transitional Justice (ICTJ) here: Research Brief: Selected examples of Defence, Intelligence … Continue reading the Open Society Foundations 2012 report, Globalizing Torture: CIA Secret Detention and Extraordinary Rendition and a Human Rights Watch 2004 report, Enduring Freedom Abuses by U.S. Forces in Afghanistan. Survivors and victims’ families are represented by lawyers ready to pursue cases. If resource limitation was the question, there is a body of publically-available evidence already gathered, including detailing command and control: nothing suggests that an investigation into US forces would be prohibitively resource intensive.

The previous Afghan government, while always saying it would cooperate with the Court in any investigation – as it was duty bound to under the Rome Statute setting up the Court – was in practice, reluctant to offer practical support. Indeed, it sought to block the Court’s work, as AAN reported repeatedly. (This makes the Prosecutor’s commendation of the previous government for its “constructive engagement” with his office particularly disingenuous.)

There would have been multiple practical obstacles for the ICC trying to investigate crimes in a country caught up in violent civil conflict, where the Taleban and the ISKP were prepared to use violence against those they considered their enemies, including presumably ICC staff and any witnesses they sought to work with. The former Afghan government would have been unable to protect ICC staff. Now, even that difficult-to-imagine prospect of on-the-ground investigation is no longer possible. As the Prosecutor has said, “there is no longer the prospect of genuine and effective domestic investigations.”

However, investigations would still be possible into the alleged crimes of the conflict actors. Refugees carry their experiences with them and there are now many Afghans in exile. Some material providing documentary evidence of war crimes is also now outside the country and would also be available to investigators. Clarifying command and control within the Taleban may have become more straightforward since the movement named its government on 7 September 2021 (see AAN analysis here.) Information about which NDS and Afghan National Police facilities typically practiced torture is also well-documented, especially in UNAMA reports on the treatment of security detainees from 2011 onwards (see AAN’s dossier on torture and detention in Afghanistan for detail). The Taleban themselves may now have access to files that would be of interest to the Court if they could be persuaded to share them.

The Court has investigated war crimes without access to the country where they allegedly took place before. It is not impossible. The real problem would come when and if cases were built and indictments made.

The politics of prioritisation

Karim Khan’s decision to single out the Taleban and ISKP for investigation does not really add up from the reasons he has given or implied. Their crimes are certainly graver and on a greater scale than the torture carried out by Afghan state forces, but the CIA’s rendition and torture programme, and the authorised use of torture by the US military are, arguably, of a comparable gravity and scale. The ability and willingness of domestic courts to prosecute is also as unlikely in the United States as in today’s Afghanistan. The Court’s resources are certainly limited, but Khan’s rationale for a narrower focus, because unconvincing, opens him up to the charge that he has given in to US bullying of the Court. It was noticeable that the US State Department spokesperson has said the US was “pleased” by Khan’s decision “to focus on the greatest of allegations and atrocity crimes.” Khan also faced earlier criticism, for example from Human Rights Watch for the selective UN Security Council mandated investigation that he led into the Islamic State in Iraq, which also ignored other perpetrators.

If the Pre-Trial Chamber authorises Khan’s request, the Court will once again be vulnerable to accusations that it deals with powerful and weak countries differently, creating a hierarchy of victims: those who have allegedly suffered abuses by weaker nations or armed groups are far more likely to see action from the Court. For a court which has been repeatedly accused of focussing on weaker perpetrators, particularly global south states, Khan’s statement is another reputational blow. There is a particular irony in Khan citing the UN Security Council’s statements about the ISKP being a global threat to security as a reason for focussing on the ISKP, while choosing to sideline investigations into war crimes allegedly committed by one of the Security Council’s own permanent members.  

What happens next?

Khan’s request now goes to the judges of the Pre-Trial Chamber. Their decision could come within weeks or months. Among both Afghans and internationals who have been pushing for accountability for war crimes allegedly committed during the Afghan conflict, there are different views of what should happen. Some believe it is right that the Taleban are the focus of investigations. A letter to the Office of the Prosecutor written before the fall of the last government by a lawyer representing some Afghan human rights and civil society groups (seen by AAN), for example, expressed this view. It urged Khan to focus on the Taleban and Afghan government forces and may, or may not, have helped swing Karim Khan’s decision to drop the investigation into US forces. The letter said:

Deprioritize the investigation of the U.S. No one disputes that crimes by international forces are not heinous or worthy of prosecution. However if the goal of the Court is to stop impunity for the worst crimes with the hopes of preventing such crimes in the future, then the helpful use of prosecutorial discretion would be to focus on crimes against Afghans by the Taleban and other internal armed groups, and by the Afghan government. Holding even a handful of individuals from these groups accountable would be the first time war crimes for the killings of Afghans would be a reality. This reality will in turn shift the calculus for war crimes violators in Afghanistan. Until today it has been the case that Taliban leaders and Afghan government leaders could operate with effectively complete impunity. Afghan lives and limbs have been cheap. The calculus will change if the Court steps in and fulfils its promise to the Afghan people, and the world.

The letter also argued that such an approach would help the Court by rendering US hostility to it a thing of the past:

Deprioritising investigation of U.S. will also reduce intense pressure on the Court which in the last several years brought sanctions against the former Prosecutor and the director of JCCD [Jurisdiction, Complementarity and Cooperation Division]. [5]The JCCD has analysts and lawyers who advise the Prosecutor on issues of jurisdiction and admissibility. The OTP will be deemed pragmatic by making this choice and we believe the decision will have support amongst stakeholders in Afghanistan. And it will be a choice that will allow you to build a stronger Court in the long-run.

This is not the only approach advocated by Afghans and internationals who have been pressing the ICC to act in regards to the Afghanistan situation. It may not even be the approach favoured by the majority. Others argue that focusing on just some parties to the conflict creates a hierarchy of victims determined by the identity of the alleged perpetrator, rather than the scale and gravity of the crimes or whether victims have recourse to justice in their own courts. This, they argue, is antithetical to the cause of justice itself and would further harm the reputation of the ICC.

The dramatic news from the Court came in the same week that the UN Human Rights Council in Geneva is once again considering a mechanism to monitor crimes in Afghanistan. We reported in August that the council had agreed a very weak resolution, drafted by Pakistan on behalf of the Organisation of Islamic Cooperation (OIC), which simply asked the High Commissioner for Human Rights to report on the situation, something she does routinely anyway. This time, the European Union put forward a draft resolution, seen by AAN, which proposes a Special Rapporteur. This is stronger than the OIC’s monitoring proposal, but still a far weaker mechanism than the Fact-Finding Mission which the Afghanistan Independent Human Rights Commission (AIHRC) and around 20 human rights organisations had proposed.

The mandate of a Special Rapporteur is to report on human rights violations, rather than investigate, and tends to be forward-looking rather than retrospective, so does not have the same potential for holding perpetrators to account as a Fact-Finding Mission. In addition, it is essentially a volunteer position, supported by a minimal staff of only one or two people, which in practice tends to mean academics take up the roles and do them on top of their busy full time jobs.

Given the scale of the problems in Afghanistan today, appointing a rapporteur is woefully insufficient. The EU’s resolution acknowledges the inadequate resources provided to a Special Rapporteur and proposes that the UN Office of the High Commissioner for Human Rights (OHCHR) provide some technical expertise. Even so, the fundamental weakness of the mechanism indicates that there are not enough members of the Council who are prepared to create a properly robust mechanism. Given the Special Rapporteur is an inherently forward-looking mechanism, it would also mean that victims of crimes by the former government and international forces would be overlooked.

In 2004, the AIHRC’s published a landmark report into transitional justice, the result of a nation-wide consultation, which spoke of the deep desire of Afghans “that their suffering be recognized.” In Afghanistan, there has already been upset that, in a conflict where war crimes have been perpetually committed for more than forty years, only those taking place after 1 May 2003, when Afghanistan became a state member of the ICC, could be investigated by the Court. This has already created one hierarchy of victims, which set the alleged perpetrators of war crimes from the PDPA, USSR and mujahedin beyond the justice of the ICC. If the International Criminal Court and the Human Rights Council now deprioritise more victims, this would compound the partiality already besetting the bid to get justice for all in Afghanistan. The ICC’s Chief Prosecutor’s decision also appears to place more importance on the victims of Afghan insurgents than the Afghans and other nationals who are still calling for justice from the US military and CIA.

Edited by Rachel Reid and Ehsan Qaane


Annex Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, following the application for an expedited order under article 18(2) seeking authorisation to resume investigations in the Situation in Afghanistan

Announced 27 September 2021

Today, I filed an application for an expedited order before Pre-Trial Chamber II of the International Criminal Court (“ICC” or the “Court”) seeking authorisation for my Office to resume its investigation in the Situation in the Islamic Republic of Afghanistan (“Afghanistan”).

On 5 March 2020, the ICC’s Appeals Chamber authorised my Office to investigate alleged atrocity crimes committed within the context of the Afghanistan situation since 1 July 2002.

On 26 March 2020, the Government of Afghanistan requested, pursuant  to article 18(2) of the Rome Statute, that the Prosecutor defers the investigation into the Afghanistan Situation to the Afghan national authorities. My Office thereafter deferred its investigations as required by the Statute, whilst considering Afghanistan’s request. We proceeded to engage with the Afghan authorities, mindful of the principle of complementarity, with a view to potentially sharing the burden of the investigation in order to enhance accountability for the victims and affected communities. I take this opportunity to commend the Government of Afghanistan’s constructive engagement with the Office and its efforts, prior to 15 August 2021, which were aimed at discharging its Rome Statute obligations.

Recent developments in Afghanistan and the change in the national authorities, represent a significant change of circumstances with import for our ongoing assessment of the deferral request. After reviewing matters carefully, I have reached the conclusion that, at this time, there is no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan. It is this finding that has necessitated the present application.

This is not to suggest that there can never be any prospect of adequate and effective proceedings in Afghanistan, carried out by State authorities in compliance with the Statute. They are not, however, available in Afghanistan at this time. I remain willing to constructively engage with national authorities in accordance with the principle of complementarity.

In preparing to resume my investigation, if authorisation is granted, I am cognizant of the limited resources available to my Office relative to the scale and nature of crimes within the jurisdiction of the Court that are being or have been committed in various parts of the world. I have therefore decided to focus my 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. The gravity, scale and continuing nature of alleged crimes by the Taliban and the Islamic State, which include allegations of indiscriminate attacks on civilians, targeted extrajudicial executions, persecution of women and girls, crimes against children and other crimes affecting the civilian population at large, demand focus and proper resources from my Office, if we are to construct credible cases capable of being proved beyond reasonable doubt in the courtroom. 

In making the determination to prioritise crimes by IS-K, as well as the Taliban, I recall the United Nations Security Council’s recent condemnation of “the deplorable attacks of August 26, 2021, near Hamid Karzai International Airport in Kabul, Afghanistan, which were claimed by the Islamic State in Khorasan Province”, and further note that the Council has, in multiple resolutions, deemed that the terrorist activities of the Islamic State constitute a global threat to international peace and security.

In relation to those aspects of the investigation that have not been prioritised, my Office will remain alive to its evidence preservation responsibilities, to the extent they arise, and promote accountability efforts within the framework of the principle of complementarity.

In my statement of 17 August 2021 regarding the Situation in Afghanistan, I expressed my deep concern over allegations of ongoing crimes within the Court’s jurisdiction, and I remain committed to deploying the appropriate and available resources at my disposal to ensure independent and impartial investigations. Victims and survivors in Afghanistan deserve no less.

I also take this opportunity to recall that just a few days ago, on 22 September 2021, we marked the United Nations International Day of Peace, an annual day of global ceasefire and non-violence. As I write this statement, crimes continue to be committed by various state and non-state actors in various parts of the world. My Office will endeavour to fulfil its mandate by prioritizing cases based on various factors, including the gravity and scale of the alleged crimes, in light of the resources available to us.

Regardless of resources, all parties to any conflict, and all actors should be left in no doubt that under both the Rome Statute and customary international law, there is no statute of limitations for war crimes or crimes against humanity. These odious and criminal acts should stop immediately and investigations commence to vindicate the principles that were established 75 years ago in Nuremberg, and to honour humanity’s basic responsibilities to itself.

Source: Office of the Prosecutor

References

References
1 Bensouda had also named the ‘Haqqani Network’, which she describes as “affiliated” to the Taleban, as also worthy of investigation. Khan did not mention it by name in his statement. AAN and others have always regarded it as one of many networks within the Taleban and an integral part of the group, rather than as a separate entity.
2 These countries were member states of the ICC at an earlier date than Afghanistan, so the starting date for war crimes to be investigated is also, necessarily, earlier.
3 Bensouda also said her office “should be permitted to expand or modify its investigation” with respect to groups, people and alleged acts “so long as the cases brought forward for prosecution are sufficiently linked to the authorised situation.”
4 Earlier official US reports into the use of torture were listed in 2008 by the International Center for Transitional Justice (ICTJ) here: Research Brief: Selected examples of Defence, Intelligence and Justice Investigative Reports into detention and interrogation practices.
5 The JCCD has analysts and lawyers who advise the Prosecutor on issues of jurisdiction and admissibility.

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