ICC prosecutor not to investigate US crimes in Afghanistan

Karim Khan says he will focus on Taliban and IS-Khorasan: Kabul voiceless as annual UN meet wraps up

By: AFP      Published: 07:21 AM, 28 Sep, 2021
US crimes in Afghanistan
File photo fo ICC prosecutor Karim Khan.

The International Criminal Court's new prosecutor said Monday he would focus on the Taliban and Islamic State-Khorasan's actions in Afghanistan instead of alleged US crimes

Karim Khan asked judges to relaunch the court's probe into Afghanistan, which was paused last year at Kabul's request, saying the Taliban's takeover meant war crimes would no longer be investigated properly.

But rights defenders reacted with fury after Khan, who took office in June with a vow to reform the ICC, announced that he would "deprioritise" the investigation into American forces and concentrate on Islamist groups.

The Hague-based ICC's Afghan probe has long enraged Washington, and prompted the US administration of president Donald Trump to impose sanctions on Khan's predecessor Fatou Bensouda.

Khan said that "current de facto control of the territory of Afghanistan by the Taliban... represents a fundamental change in circumstances necessitating the present application" to reopen the investigation.

The now-deposed government in Kabul had asked the ICC in early 2020 to pause its inquiry while it probed war crimes domestically. The court can step in where member states are unable or willing to prosecute.

Also Read: State Dept No. 2 to visit Pakistan, India after Taliban takeover

The ICC's limited resources and the need to focus on cases most likely to result in convictions meant he would now narrow his focus in Afghanistan, Khan added.

- 'Gravity and scale' -

"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," he said.

This was because of the "gravity, scale and continuing nature of alleged crimes by the Taliban and the Islamic State", Khan said.

The ICC launched a preliminary probe there in 2006, with a mandate to investigate crimes dating back to when Afghanistan joined the court three years earlier.

Bensouda sought permission for a formal investigation in 2017, saying there was "reasonable basis to believe" war crimes had been committed by both the Taliban, and by US forces in Afghanistan and the CIA in secret detention centres abroad.

President Joe Biden, while continuing Trump's opposition to ICC probes both of US forces as of Israel, has sought a more cooperative approach with the court and lifted sanctions on Bensouda. Biden withdrew troops from Afghanistan at the end of August. 

Asked about Khan's decision, State Department deputy spokeswoman Jalina Porter did not comment directly on sparing US forces but said: "We are deeply concerned about the current human rights situation in Afghanistan, and that also includes allegations of atrocities, and certainly welcome efforts to ensure accountability."

- 'Shame' -

While Khan said the ICC would "remain alive to its evidence preservation responsibilities, to the extent they arise" on US crimes, the focus would now be on Afghanistan's new rulers and their IS-K rivals.

The prosecutor added that the Taliban's takeover itself "may constitute an unconstitutional transition of power" and added that "there is a reasonable basis to believe that persons affiliated with the Taliban committed crimes against humanity."

Reports of the Taliban's release of "thousands of prisoners allegedly linked to Al-Qaeda and IS terror groups... does not support the notion that the Taliban will genuinely investigate".

The ICC prosecutor also specifically mentioned the deadly August 26 attack on Kabul airport claimed by IS-K in which 13 US service members and more than 100 Afghan civilians were killed.

The decision to end the ICC focus on US abuses in Afghanistan was greeted with fury in some quarters.

"Stunned," tweeted Katherine Gallagher, a lawyer for Afghan victims of what they say was torture by US forces, adding that Khan had given them no advance warning of the move and they only found out when they read a press release.

"Next time I'm told about "victim-centered" #ICC by court officials or diplomats, academics... #SHAME", added Gallagher.

Amnesty International campaigner Samira Hamidi said a US drone strike days before the pullout that wiped out 10 members of an Afghan family showed that the ICC "needs to revisit this decision and hold the US accountable too."

Afghanistan goes voiceless at annual UN meet

The UN General Assembly drew to a close Monday without speeches by Afghanistan or Myanmar after world powers intervened in disputes over who would represent the two countries.

The Afghan ambassador appointed by ousted president Ashraf Ghani had been due to defy the Taliban with an address at the meeting that saw 100 leaders gather in New York despite coronavirus fears.

But Ghulam Isaczai's name was removed from the list of speakers early Monday in an move that diplomats suggested had been brokered by Washington, Beijing and Moscow after they did the same for Myanmar.

"I imagine" that there was an agreement struck by those three powers, an ambassador with a Security Council country told AFP.

Another diplomat, speaking on condition of anonymity, described it as a "wise decision."

Last week, the Taliban wrote a letter to UN Secretary-General Antonio Guterres requesting that its new foreign minister Amir Khan Muttaqi be allowed to participate instead of Isaczai.

The group said that Isaczai, who had urged nations to "unequivocally state" that they would not recognize a Taliban government, "no longer represents" Afghanistan at the global body.

But diplomats at the UN said the request had come too late and Isaczai, still considered the head of Afghanistan's mission by the UN, appeared on a list of speakers sent out late Sunday.

"The country withdraws its participation in the general debate," Monica Grayley, a spokeswoman for the assembly's president, told AFP, adding that the mission had not cited a reason for pulling out.

The withdrawal came after a high-level UN diplomat told AFP that an agreement had also been reached between the United States, Russia and China preventing Myanmar's UN ambassador -- an outspoken supporter of the democracy movement -- from speaking.

- 'Low profile' -

Kyaw Moe Tun, chosen by former leader Aung San Suu Kyi, has defied the military junta running the country to stay in his post.

He is supported by the international community and has retained his seat at the United Nations following the February 1 military coup.

In May, the junta appointed a former general to replace him, but the United Nations has not yet approved the appointment.

Kyaw Moe Tun was the victim of a recent alleged conspiracy foiled by US investigators that plotted to either force him to resign or kill him if he refused.

He told AFP his plans for the General Assembly were "low profile."

The assembly is expected to be asked to vote in November on which of the competing delegations represent Afghanistan and Myanmar at the UN.

Guinea's representative Aly Diane, appointed by former president Alpha Conde, who was deposed in a military coup earlier this month, said the new military authorities plan to form a "government of national unity" and draft a new constitution before holding "free and fair elections."

"Arrangements have been made to allow political parties and civil society to operate freely," he said, noting that Conde's opponents have also been released.

It was another of several anomalies at the diplomatic marathon, which saw 100 leaders and dozens of ministers descend on the UN headquarters after last year's event was mostly virtual.

- Submarine spat -

Many leaders chose to send video messages instead.

French President Emmanuel Macron initially said he would attend, before opting to send a video message that was to be played the day after US President Joe Biden spoke.

Eventually, Foreign Minister Jean-Yves Le Drian instead spoke for France, whose presence all week was overshadowed by a spat with the United States over a mega submarine deal with Australia.

Despite being at the UN for five days last week, Le Drian gave his address in a pre-recorded video message Monday that called for Western powers to revive the stalled Iranian nuclear deal.

"It is rare for one of the five permanent members of the Security Council to intervene on the last day," said a European diplomat, on condition of anonymity. 

The United States, fearing the event would be a hotbed for the coronavirus, had tried to dissuade leaders from traveling to New York, where a vaccine mandate is in place.

Strict rules over masks and social distancing were imposed, with only seven people per delegation allowed.

Only four positive cases have been reported so far, all in the delegation of Brazil, whose president, Jair Bolsonaro, is a vaccine skeptic.

Despite New York's efforts, delegates did not have to show they were vaccinated or provide proof of a negative test to enter the UN building.

In all, speeches by leaders and representatives from all 193 UN members, apart from Afghanistan and Myanmar, will have been delivered, many focusing on international collaboration on climate change and Covid-19.


Agence France-Presse is an international news agency.