International Criminal Court To Investigate The Taliban And ISIS Branch In Afghanistan
The International Criminal Court in The Hague, Netherlands. Photo by the UN/Rick Bajornas.
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(ANALYSIS) On Sept. 27, 2021, the prosecutor of the International Criminal Court, Karim A.A. Khan, filed an application seeking authorization for the office of the prosecutor to resume its investigation of the situation in Afghanistan.
In March 2020, the Appeals Chamber of the ICC decided to authorize the prosecutor to commence an investigation into alleged crimes perpetrated in the territory of Afghanistan since May 1, 2003, as well as other alleged crimes associated with the armed conflict in Afghanistan. Afghanistan became a party to the Rome Statute on Feb. 10, 2003. This gave the ICC territorial jurisdiction to investigate any crimes committed in Afghanistan or by its nationals from May 1, 2003 onward.
Shortly afterward, the government of Afghanistan requested that the prosecutor defer the investigation into the situation. Over the subsequent months, the office of the prosecutor has been engaging with Afghan authorities. However, because of the developments of August 2021 and the change of the national authorities, the prosecutor reassessed the situation and concluded that “there is no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan.” As a result, the prosecutor found it necessary to file the application to resume the investigation.
The prosecutor announced that it would focus on crimes allegedly committed by the Taliban and the Islamic State group's Afghanistan affiliate and deprioritize other alleged crimes. As the prosecutor argued, “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.”
The prosecutor further justified the focus on the atrocities by the Taliban and the Islamic State group with limited resources available relative to the scale and nature of crimes within the jurisdiction of the ICC, whether in Afghanistan or other parts of the world.
The decision comes shortly after Amnesty International published its report shedding light on the mass killings of the Hazaras by the Taliban and after the U.S. Holocaust Memorial Museum’s statement on the risk of crimes against humanity and even genocide against the group. Indeed, for decades, the Hazara Shiite community has been subject to violence by several actors, including the Taliban and the Islamic State group. The Islamic State group's Afghanistan affiliate is a self-proclaimed branch of the terror organization active in Afghanistan. In 2020, it was responsible for at least 10 attacks against Shiite Muslims, Sufi Muslims, and Sikhs resulting in 308 civilian casualties. The atrocities are expected to continue.
However, the atrocities against the ethno-religious group are not the only possible focus of the inquiry. Other atrocities include indiscriminate attacks on civilians more broadly, targeted extrajudicial executions, persecution of women and girls, crimes against children and much more.
As the Taliban and Islamic State group are taking over Afghanistan and unleashing their destructive reign, the ICC investigating the crimes as they happen will enable better monitoring and possibly also evidence collection than when such an investigation is conducted years after the alleged atrocities. Furthermore, the ICC having an eye on the situation may also mean that the alleged atrocities trigger quicker action and response from states and international actors. The next months will tell whether this is the case.
This piece was republished from Forbes with permission.
Ewelina U. Ochab is a legal researcher, human rights advocate, doctoral candidate and author of the book “Never Again: Legal Responses to a Broken Promise in the Middle East” and more than 30 U.N. reports. She works on the topic of the persecution of minorities around the world.