On September 27, 2021, the International Criminal Court’s (ICC) Chief Prosecutor Karim Khan filed an expedited order to resume the investigation into alleged war crimes the United States had committed in Afghanistan. The initial probe was suspended following the Afghan government’s petition to defer ICC action due to domestic investigations purportedly being undertaken of the same crimes. Afghan authorities exercised their right to the principle of complementary, which provides that cases are inadmissible before the ICC if a state with jurisdiction over the alleged crimes is undergoing investigation. According to Khan, the Taliban’s re-emergence into power eradicated “the prospect of genuine and effective domestic investigations,” thus warranting the resumption of the ICC’s probe into Afghanistan. 

In Khan’s resumption announcement, he noted that the focus of the investigation would be placed on alleged crimes committed by the Taliban and the Islamic State Khorasan (ISIS-K). Khan cites resources limitations faced by the Office of the Prosecutor (OTP) for deprioritizing crimes committed by other actors, insinuating that the gravity and scale of alleged crimes by the Taliban and ISIS-K will consume the OTP’s capacity to establish credible cases effectively. The “other actors,” though not expressly named and who were previously included in the scope of the investigation, are the United States (US) nationals (i.e., members of the Central Intelligence Agency and US armed forces) and the former Afghan forces. 

Critics are unconvinced by the reasons Khan cited and characterize the OTP’s de-prioritization of crimes by other actors as an unequal application of the rule of law. While the US is not a party to the Rome Statute and has consistently argued that the ICC may not exercise its jurisdiction over the US, the ICC may exercise jurisdiction to adjudicate crimes committed on the territory of a State Party (i.e., Afghanistan).

US forces and intelligence operatives have been accused of war crimes since 2002, without any meaningful action taken by its domestic courts.

It is apparent that the US has “able” judicial systems but has exhibited a consistent unwillingness to investigate and prosecute nationals who committed alleged crimes (such as the infamous torture programs). 

Following the ICC’s authorization of the initial probe into Afghanistan on March 5, 2020, the Trump administration imposed sanctions on the former Prosecutor and members of her office – essentially punishing the OTP for seeking to hold US nationals accountable. The Biden Administration has since removed those sanctions, allowing the current Prosecutor to proceed with the investigation, including crimes committed by US nationals without fear of retaliation. Some believed that if the US continued to refuse an investigation, the ICC may have the requisite jurisdiction due to US unwillingness or be able to sway the US to do so based on the principle of complementary. However, the Biden Administration’s incentive to investigate was eliminated with the de-prioritization of the ICC investigation of US nationals. 

Khan has been repeatedly accused of “bending to the political wind” by commentators. Several critics characterized the OTP’s decision as political, effectively providing the US and its allies a “get out of jail free card.” The exclusion of US crimes further conveys that delay tactics and intimidation strategies aimed at the ICC yields results – approaches that jeopardize the rule of law. Moreover, it communicates to the victims that if the crime in question were committed by the West and its allies, achieving justice would be improbable. Khan’s narrowing of scope is also viewed by some as confirmation that the ICC is either unwilling or unable to investigate major world powers.  

Legally, the OTP has discretion over its investigative approaches, which includes narrowing the scope of a probe to its most nefarious crimes. However, the importance of the ICC to investigate alleged crimes in a “Situation” as a whole – examining alleged crimes committed by all parties – should not take a backseat. The ICC’s decision to confine the investigation to alleged crimes by the Taliban and ISIS-K may yield a more robust case but simultaneously conveys to the world that powerful states enjoy impunity, and that global accountability is a diminishing concept.

If the ICC cannot uphold the rule of law on the international stage, it bears asking who can?

The efficacy of the rule of law is dependent upon its equal application to all.The OTP’s decision threatens the reputation and legitimacy of the Court by further reinforcing existing allegations of ICC bias and pro-Western sentiments. Khan’s de-prioritization of US crimes reflects the notion that the ICC can be manipulated by states (including non-party states) to meet national interests with an apparent lack of global accountability, particularly the accountability of the world’s most powerful states.

Amy Bing is a J.D.-M.A. Candidate at the University of Ottawa Faculty of Law and the Norman Paterson School of International Affairs, Carleton University. She completed her B.A. in International Relations and Political Science at the University of Toronto, and has particular research interests in international law, global public policy, and Canadian foreign affairs. Amy is currently employed as a policy analyst with the Government of Canada.

Photo Credit: Staff Sgt. Andrew Smith (US Army)

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