SHIFT IN ICC’S PROBE OVER WAR CRIMES IN AFGHANISTAN BAFFLES MANY

Wed 06 October 2021:

The recent announcement by Prosecutor for International Criminal Court (ICC) Karim Khan to resume investigations into war crimes in Afghanistan, after Taliban’s return to power, by excluding the earlier probes, drew strong reaction from the global rights activists.

The statement made clear the investigation would essentially exclude war crimes committed by the foreign forces and their allies in Afghanistan, Arnaud Mafille, who had assisted in filing representations for victims of alleged crimes against humanity and war crimes committed in Afghanistan to the International Criminal Court, expressing his strong reservations, said in his report published in ‘The middle East Eye’.

He further noted that the ICC had already spent 15 years looking into alleged war crimes in Afghanistan before opening a full investigation.

The ICC prosecutor had hinted “to focus my office’s investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State Khorasan Province and to deprioritise other aspects of this investigation.” According to Arnaud Mafille, in 2017, Fatou Bensouda, the previous chief prosecutor, had announced plans to start investigations into historic allegations of crimes against humanity and war crimes in Afghanistan.

This followed a 2016 ICC report that affirmed a “reasonable basis” to believe that the US and allied forces had carried out war crimes in Afghanistan.

The ICC then issued a call to submit representations on behalf of victims, giving NGOs just two months to collect and file evidence, he added.

Patricia Gossman, Associate Asia Director for the Human Rights Watch, in her report said that Afghanistan’s 40 years of conflict had been marked by countless war crimes by different parties.

She did not rule out involvement of the former Afghan government forces in crimes against humanity.

She said that Afghanistan joined the International Criminal Court (ICC) on 1 May, 2003, and in March 2020, the ICC’s judges finally authorised then-Prosecutor Fatou Bensouda’s 2017 request for an investigation into alleged crimes committed by the former Afghan National Security Forces, and US military and Central Intelligence Agency (CIA) officials.

Patricia Gossman had also served as Director of the Afghanistan Programme at the International Center for Transitional Justice on Afghanistan.

The ICC was set up in 2002 to investigate the world’s worst crimes in cases where member states were either unable or unwilling to investigate them themselves, she added.

Patricia further noted that Afghanistan was an emblematic of the kind of situation the ICC was created to address, despite many years of donor support for building effective institutions, the former Afghan governments failed to investigate serious crimes.

She cited that during during 2020, the administration of then-President Ashraf Ghani sought to delay the ICC’s investigation under Article 18 of the ICC’s Rome Statute on the admissibility of a case, asserting that the government was already prosecuting serious crimes.

“It was doing nothing of the sort. On the contrary, over many years, President Ghani’s government, like that of President Hamid Karzai before him, never credibly investigated incidents of enforced disappearance, torture, rape, and extrajudicial killings by its forces,” she added.

The director of HRW said the US has also failed to hold its forces accountable for alleged war crimes, including torture and summary executions.

The HRW associate director concluded that by ignoring consistent appeals without meaningful action against those war crimes would be an abdication of the Human Rights Council’s responsibility.

“The Afghan people are counting on this support,” she added.

Other critics accused ICC of bias and acting as a tool of Western imperialism, while ignoring serious crimes committed by powerful against humanity.

These sentiments had been frequently expressed particularly by African leaders for disproportionate focus of the Court on Africa.

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